Gujarat High Court
Harshadbhai vs State on 19 June, 2004
Author: R.M.Chhaya
Bench: R.M.Chhaya
HARSHADBHAI LAXMANBHAI PATELV/SSTATE OF GUJARAT R/CR.MA/757/2007 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION NO.757 of 2007 With CRIMINAL MISC.APPLICATION NO.3282 of 2007 With CRIMINAL MISC.APPLICATION NO.4962 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/-
===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge ?
NO =================================================== HARSHADBHAI LAXMANBHAI PATEL & 2....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ===================================================Appearance:
IN CRIMINAL MISC.APPLICATION NO.757 of 2007 MR AD SHAH, ADVOCATE for the Applicant(s) No. 1 3 MS MOXA THAKKAR, APP for the Respondent(s) No. 1 MR BJ TRIVEDI, ADVOCATE for the Respondent(s) No. 2 MR JT TRIVEDI, ADVOCATE for the Respondent(s) No. 2 IN CRIMINAL MISC.APPLICATION NO. 3282 of 2007 MR ARPIT A KAPADIA, ADVOCATE for Applicant(s) No. 1 MS MOXA THAKKAR, APP for the Respondent(s) No. 1 MR BJ TRIVEDI, ADVOCATE for the Respondent(s) No. 2 MR JT TRIVEDI, ADVOCATE for the Respondent(s) No. 2 IN CRIMINAL MISC.APPLICATION NO.4962 of 2007 MR DEEP D VYAS, ADVOCATE for the Applicant(s) No. 1 MS MOXA THAKKAR, APP for the Respondent(s) No. 1 MR BJ TRIVEDI, ADVOCATE for the Respondent(s) No. 2 MR JT TRIVEDI, ADVOCATE for the Respondent(s) No. 2 =================================================== CORAM:
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 10/05/2013 CAV (COMMON) JUDGMENT (1) All the three applications relate to the same F.I.R. and identical questions are raised in these applications, the same were heard together and are hereby disposed of by this common judgment.
(2) As the facts of all these three applications are similar, the facts stated in Criminal Misc. Application No.757 of 2007 are taken as basis of this judgment.
(3) By way of these applications under Section 482 of the Code of Criminal Procedure, 1973 (the Code) the applicants-original accused have prayed for quashing of F.I.R. being C.R. No.I-100 of 2006 registered at Kosamba Police Station, Surat (Rural) for the offences under Sections 465, 466, 467, 468, 471, 420 and 114 of the Indian Penal Code, 1860 (the IPC).
(4) Heard Mr.A.D.Shah, learned advocate for the applicants (of Cri. Misc.
Appln. No.757/2007), Mr.Arpit A. Kapadia, learned advocate for the applicant (of Cri. Misc. Appln. No.3282/2007), Mr.Deep D. Vyas, learned advocate for the applicant (of Cri. Misc. Appln. No.4962/2007), Ms.Moxa Thakkar, learned Assistant Public Prosecutor for the respondent-State, and Mr.J.T.Trivedi with Mr.B.J.Trivedi, learned advocates appearing for respondent No.2-first informant.
(5) The F.I.R. is registered by the first informant (i.e. respondent No.2) alleging, that in the year 1994 sister-in-law of the first informant installed cable control room for providing cable services, which was registered in the name and style of R.K.World Vision. That the said control room was managed by sister-in-law of the first informant viz. Smt. Smitaben R. Patel and the brother-in-law viz. Shri Rajeshbhai and had about 25 customers. That in the year 1996 about 10 new channels were telecast. That necessary registration was also obtained from the competent authority i.e. Mamlatdar, Mangrol under Registration No.1/1996. That Smt.Smitaben Patel was the owner of the control room and one Shri Manharbhai T. Prajapati was the manager. That at that point of time R.K.World Vision had 77 customers. During that time brother-in-law of the first informant viz. Shri Rajeshbhai established Sunny World Vision, having registration No.2/96 and it had about 118 customers. That in the year 2000 Smt.Smitaben Patel and one Shri Kadarbhai Fruitwala started a new control room near Zanda Chowk, on the first floor of J.J.Cold Drinks in partnership, having equal share in the name and style of Ekta World Vision, having registration No.1/2000. That connections of R.K.World Vision and Sunny World Vision were merged in Ekta World Vision and the earlier two control rooms were closed. That Ekta World Vision had 650 customers and Shri Manharbhai Prajapati was the manager of Ekta World Vision. That as Shri Manharbhai Prajapati was appointed as manager of Ekta World Vision, the sister-in-law (Smt.Smitaben Patel) gave power of attorney in favour of the first informant and accordingly Ekta World Vision was managed by the first informant and the aforesaid Shri Kadarbhai Fruitwala.
(5.1)That in the year 2004 Shri Kadarbhai Fruitwala retired from Ekta World Vision by executing an agreement dated 19.06.2004 and hence, Smt.Smitaben Patel, sister-in-law of the first informant and the Power of Attorney i.e. the first informant remain owner of Ekta World Vision. That Smt. Smitaben Patel is the sole owner of Ekta World Vision and has no other partner.
(6) That Shri Harshad Laxmanbhai Patel (applicant No.1 of Cri. Misc. Appln. No.757/07) purchased stamp paper from one Shri Pankajkumar Mohanlal Modi, (Stamp Vendor), in the name of Shri Manish Bhakta and prepared an instrument which recites that one Shri Babubhai Amrut Prajapati has 20% share as partner in Ekta World Vision. That the said document is dated 17.06.2005 and the same is notarized under Registration No.4594/05 dated 25.03.2005. That similarly a stamp paper dated 16.06.2005 came to be purchased from Shri Hasmukh B. Mistry, having Registration No.1112 dated 16.06.2005 in the name of Shri Imtiyaz Kadar Malek. That on the said stamp paper another instrument dated 17.06.2005 came to be prepared showing Shri Imtiyaz Kadar Malek as partner of Ekta World Vision who, in turn, transferred his share in favour of Shri Harshad L. Patel. That the said document came to be notarized with the notary Shri Mohanbhai Bhavanbhai Patel (applicant No.3 of Cri. Misc. Appln. No.757/07) on 24.06.2005 bearing Registration No.2332/05, which bears the stamp of notary dated 24.11.2005. That as such the said fraudulent document appears to have been prepared after Shri Harshad L. Patel took possession of Ekta World Vision in the month of November 2005 and, therefore, the same appears stamp of notary dated 24.11.2005.
(7) That the said fact is proved by the fact that if on 25.03.2005 registration number is 4594 then the document registered on 24.06.2005 cannot bear Registration No.2332. That the notary has illegally helped in creating bogus documents as he is related with the accused.
(8) That the control room of Ekta World Vision is being run in a rented premises of one Smt. Harshaben Ajitbhai Thakkar (applicant of Cri. Misc. Appln. No.3282/07) and Smt.Smitaben Patel is the tenant of the said premises. That Ekta World Vision was being run in the property bearing No.1871/1, situated at Zanda Chowk, Kosamba, Dist. Surat. That Shri Harshadbhai Patel and others took illegal possession of the said premises on 29.10.2005 and in order to wrongfully established their right, created back-dated rent note agreement dated 15.02.2005 on a stamp paper of Rs.50/-, which was purchased on 15.02.2005 in the name of Shri Manish Bhakta from the stamp vendor, Shri Pankajkumar Mohanlal Modi. That the said agreement dated 15.02.2005 recites that the said property bearing No.1871/1 is given on rent by Smt.Harshaben A. Thakkar to Shri Kiransinh Udaysinh Atodariya (applicant No.2 of Cri. Misc. Appln. No.757 of 2007). That the rent note is also notarized by Shri M.B.Patel on 01.03.2005 and the notary s stamps are affixed with Registration No.955/05.
(9) That Shri Harshad Laxmanbhai Patel, Shri Kishorsinh Vasadia, Shri Kiransinh Udaysinh Atodariya, Kantibhai Shah and notary, Shri Pankajkumar Mohanlal Modi connived with each other and took illegal possession of the premises of the first informant and created bogus documents with an intention to use them in the court. That the documents are bogus and the said fact is proved from the fact that the stamp papers have been purchased at Post Valia in the name of Shri Manish Bhakta by Shri N.S.Patel for the persons staying at Kosamba. That both the stamps are dated 15.02.2005 and even the registration numbers are same, however, writing on both the stamp papers are dated 17.03.2005 and 15.02.2005 and the instruments of March 2005 are registered with Notary, Shri Pankajkumar Mohanlal Modi, on 25.03.2005 under registration No.4594/05, whereas on the rent note notary has affixed stamped dated 01.03.2005 and 01.12.2005 bearing registration No.955/05. In the same way three documents, which is registered by notary, Shri Pankajkumar Mohanlal Modi, bears stamp dated 24.06.2005 and 24.11.2005 bearing registration No.2332/05. That if the document registered in March bears registration No.4594/05, then the document registered in June cannot have registration No.2332/05. That with an intention to illegally harm the first informant all these documents have been prepared on 24.11.2005 and 01.12.2005 by mentioning back dates.
(10) That on examining the rent note/stamp paper it appears that Shri Kiransinh Udaysinh Atodariya, residing at Village Tarsadi, Tal. Mangrol, Dist. Surat has taken on rent the control room situated at Zanda Chowk from Smt. Harshaben Ajitbhai Thakkar. That the said stamp paper is purchased from stamp vendor, Shri Lavia Pankajkumar Mohanbhai, in the name of Shri Manish Bhakta bearing register No.1609, whereas Shri Harshad L. Patel entered into an agreement of sale dated 17.03.2005 and the said stamp paper is purchased from stamp vendor, Shri Pankajkumar Mohanlal Modi at Valia, in the name of Shri Manish Bhakta, which also bears register No.1609. That both are identical register numbers.
(11) That the rent note agreement is notarized on 01.03.2005 before notary Shri Mohanbhai B. Patel bearing inward No.955/05, whereas the document, which is executed by Shri Harshad L. Patel and Shri Babubhai Prajapati, is notarized on 25.03.2005 bearing registration No.4594. This indicates that within span of 24 days 3639 documents have been notarized, which is impossible in Ankleshwar town. That Shri Harshad L Patel and Shri Imtiyaz Kadar executed sale document dated 17.06.2005, which is notarized on 24.06.2005, which bears inward No.2332/05, which indicates that there is discrepancy of 2262 numbers. That it is proved that it is wrongly notarized.
(12) That the first informant has further mentioned that in both documents Shri Shah Kantilal Mohanlal and Shri Kishor R. Vasadia are the witnesses. That the reason for creating these three bogus documents is that on 29.10.2005 the applicants placed a revolver on the forehead of the first informant, threatened and beat the first informant, for which a separate criminal complaint has been lodged being C.R. No.I-125 of 2005 with Kosamba Police Station, Dist. Surat on 10.11.2005 for the offences punishable under Sections 452, 323, 504, 506(2) and 114 of the IPC wherein Shri Harshad Laxmanbhai Patel, Shri Kiransinh Udaysinh Atodariya, Shri Kishorsinh R. Vasadia and Shri Kantibhai Mohanlal Shah are the accused.
(13) It is thus alleged that in order to illegally take away possession of the control room of the cable lines of the first informant the applicants have connived with each other and in order to cheat the first informant have created bogus documents and bogus evidence and thus it is alleged that the applicants have committed offences under Sections 465, 466, 467, 468, 471, 420 and 114 of the IPC.
(14) It is further note worthy that the first informant, in his capacity as power of attorney of Smt.Smitaben R. Patel (his sister-in-law), also filed Regular Civil Suit No.42 of 2006 in the court of Principal Civil Judge, Mangrol, which came to be disposed of vide order dated 01.11.2006 on the basis of the compromise arrived at between the first informant as well as the defendants therein, who are some of the applicants. Copies of the application as well as order passed therein is part of record of Cri. Misc. Appln. No.757/07. Bare reading of the same indicates that the parties agreed to withdraw the impugned F.I.R. In the background of the aforesaid facts, the applicants have approached this Court by way of the present applications.
(15) In response to the notice issued by this Court, respondent No.2-first informant filed affidavit-in-reply wherein it has been, inter alia, contended that on 29.10.2005 the applicants and their persons snatched the possession of the alleged property under threat by showing revolver to the first informant/complainant and also forcibly took signature on a blank paper, for which a criminal complaint was lodged at Kosamba Police Station on 10.11.2005 under Sections 294(B), 452, 467, 468, 323, 504, 506(2), 114 of IPC and under Sections 23, 24, 34, 35 and Section 17 of the Cable Television Network (Regulation) Act, however, the police authorities had lodged F.I.R. for the said incident on 20.11.2005 i.e. after 10 days being C.R. No.I-125 of 2005 with Kosamba Police Station, Dist. Surat. It has been, inter alia, alleged therein, that the first informant was attacked and was brutally injured and he had to be hospitalized at Unity Hospital, Vadodara and there, J.P.Road Police Station had taken his statement which, according to the first informant, was forwarded to the Kosamba Police Station, Dist. Surat, which came to be lodged as F.I.R. being C.R. No.I-132 of 2005 dated 13.12.2005. It has been further contended that even in the compromise pursis filed in Regular Civil Suit No.42 of 2006 before the Civil Court at Mangrol, the present applicants have amended the settlement document before producing before the concerned court by making correction with dishonest and ill-intention to take away possession of Pandwai Sugar Cable Lines wherein there were about 100 connections. It has been also contended that on the basis of the copy of compromise pursis (at Annexure-E1 of the affidavit-in-reply) it appears that no such agreement about Pandwai Sugar Cable Lines was part of the said pursis. It has been also contended that there is danger to his life as well as life of his family members and, therefore, it was prayed that the application be dismissed.
(16) It may be noted that the applicants have filed affidavit-in-rejoinder to the affidavit-in-reply of respondent No.2 and have contended that a belated complaint has been given by the first informant only to bring pressure on false facts. Relying upon the agreement for compromise it was contended that the same was executed between the parties freely and without any duress and a false defence has been created for not abiding compromise purshis. It is contended that respondent No.2 is in habit of initiating such complaints and backing out after settlement. It is contended that respondent No.2 is misusing the criminal proceedings for wrongfully obtaining reliefs in the civil proceedings. Further reliance was placed upon the affidavits of the persons, before whom the agreement of compromise was signed and filed in Regular Civil Suit No.42 of 2006.
(17) As against this, it appears from the record that the first informant has filed sur-rejoinder and has contended that the applications, which is filed for quashing the impugned F.I.R. for very grave offences of intentionally and dishonestly fabricating false documents, knowing them to be false and thereby practicing deception on deponent/the first informant. It is contended by respondent No.2 that the first informant has produced copies of the documents which are bogus and fraudulently prepared. That the first informant has also filed a further affidavit dated 13.12.2007 wherein it is averred that the first informant has filed an application under Section 340 of the Code before Principal Civil Judge, Mangrol, which is numbered as Civil Misc. Application No.16 of 2007 in Regular Civil Suit No.42 of 2006. That the first informant has also filed further affidavit that except Section 420 of the IPC, no other sections are compoundable.
(18) Heard Mr.A.D.Shah, learned advocate for the applicants (of Cri. Misc. Appln. No.757/2007). Mr.Shah has taken this Court through the impugned F.I.R. as well as the factual matrix arising out of the matter. It was submitted that as per the settlement of dispute in the civil proceedings, one of the conditions was that the impugned F.I.R. shall be withdrawn and not proceeded with further. It was submitted that having taken all advantages, as claimed in the civil proceedings, the first informant cannot be permitted to back out from such a condition as the settlement is binding upon the first informant and, therefore, continuation of the criminal proceedings would amount to abuse of process of law. It was submitted that the entire dispute is of a civil transaction wherein the allegations are relating to the documents. It was submitted that considering the settlement in the affidavit on oath and further considering the fact that the factum of compromise not having been disputed and what is disputed by the first informant even in the civil proceedings was addition of one line (sentence) in the said compromise and having taken fullest advantage and having enjoyed the fruits of settlement the first informant cannot be permitted to contend that the impugned F.I.R. should not be quashed. Relying upon the judgments of the Apex Court in the cases of Central Bureau of Investigation, SPE, SIU (X), New Delhi Vs. Duncans Agro Industries Ltd., Calcutta, AIR 1996 SC 2452 as well as Hira Lal Hari Lal Bhagwati, Vs. C.B.I. New Delhi, AIR 2003 SC 2545, it was submitted that let justice be done in accordance with the terms of the agreement. It was submitted that the owner of the property in question i.e. cable control room, is Smt. Smitaben R. Patel and the first informant is only the Power of Attorney. It was further submitted that the police should not be permitted to investigate further and it was urged that this Court has to exercise jurisdiction under Section 482 of the Code to prevent abuse of process of investigation and further to secure the ends of justice. It was further submitted that by quashing all these proceedings rights of the first informant will not be in any manner affected as he has already secured the same. It was submitted that bare reading of the impugned F.I.R. does not reveal any of the offences as alleged. It was submitted that the documents which were prepared have not been used and as such settlement is arrived at between the parties within 13 days. It was contended that when the documents are not produced before any court, how can F.I.R. be lodged. It was alleged that the first informant has used the police machinery to settle the civil dispute. It was further contended that the F.I.R. is filed after a delay of about 11 months and, therefore, on this ground also, the impugned F.I.R. deserves to be quashed. It was further contended that offences under Sections 465, 466, 467, 468 and 471 of the IPC are relating to forged documents. Referring to the documents in question it was contended that it is not the case of the first informant that the persons who are signatories to the documents have not signed the documents and even the signatories are joined as accused on the basis that the documents are the fabricated documents, to be used in any proceedings to be justify their claim in Ekta World Vision at a later stage. It was submitted that necessary ingredients viz. to make false documents to the effect that such documents or part of a document is made by or by the authority of a person by whom or by whose authority he knows that it not made which are absent in the facts and circumstances of the case. It was therefore contended that the ingredients of Section 463 of the IPC are not made out. It was therefore contended that when all the three documents prima facie are not forged documents, the punishing Sections 465, 466, 467, 408 and 471 of the IPC will not be attracted.
(19) Referring to the impugned F.I.R. it was contended that there are no averments in the F.I.R. to the effect that the accused have deceived complainant and fraudulently or dishonestly induced the complainant to deliver any property to any person or that any person shall retain any property. It was also contended that there is not a single averment in the entire impugned F.I.R. that there was any false or willful representation by a particular accused thereby the first informant was induced to deliver any property to any person or to consent with any person to retrain property. It was therefore contended that the first part of definition of cheating is prima facie not disclosed. It was further contended that similarly second part of cheating, which relates to only inducement is also absent in the present case and even if it is found that the second part of cheating is prima facie made out, the same is punishable under Section 417 of the IPC, which is non-cognizable offence having limitation of only one year. It was further submitted that the entire F.I.R. is based on the premise that three documents were fabricated to justify forcibly taken possession of the control room by the accused, with an intention to use as evidence in a judicial proceedings or taken by law before a public servant. It was submitted that Section 192 of the IPC deals with fabricating false evidence, which is made punishable under Section 193 of the IPC, which is a non-cognizable offence and the police authority therefore cannot register the offence under Section 154 of the Code and commence investigation without there being any order under Section 155(2) of the Code. It was therefore submitted that the investigation under Section 154 of the Code in the instant case would amount to clear abuse of process of court and law. It was submitted that no offence as alleged can be culled out from the bare reading of the impugned F.I.R. and hence, the same deserves to be quashed as prayed for.
(20) Mr.Arpit A. Kapadia, learned advocate for the applicant (of Cri. Misc. Appln. No.3282/2007) and Mr.Deep D. Vyas, learned advocate for the applicant (of Cri. Misc. Appln. No.4962/2007) have adopted the arguments made by Mr.A.D.Shah, learned advocate for the applicants (of Cri. Misc. Appln. No.757/2007).
(21) Per contra, Mr.Moxa Thakkar, learned Assistant Public Prosecutor for the respondent-State, has opposed the applications. It was submitted that serious allegations are leveled against the applicants and even if some offences are cognizable offences the police can investigate in the matter wherein other cognizable offences are made out. It was further submitted that the investigation is at a very premative stage as the F.I.R. came to be lodged on 07.10.2006 and stay is granted on 24.01.2007 (in Cri. Misc. Appln. No.757/2007) and on 27.02.2009 (in Cri. Misc. Appln. Nos.3282/2007 and 4962/2007). It was further submitted that it bornes out from the allegations itself that back dated stamp papers have been used by the applicants and the documents having been created for the purpose of using them with an intention to cheat. It was further submitted that prima facie offences are made out under the aforesaid sections as alleged in the impugned F.I.R.
It was further submitted that the police should be permitted to continue with the investigation and it is submitted that the applications deserve to be dismissed.
(22) Mr.J.T.Trivedi with Mr.B.J.Trivedi, learned counsel for respondent No.2-first informant, has also opposed the applications. It was submitted that prior to registration of the impugned F.I.R. the first informant gave an application to the police on 02.08.2006. It was further submitted that in an application under Section 482 of the Code the short question which requires, determination by this Court is to the effect, whether the impugned F.I.R. prima facie discloses offences or not and if it discloses quashing of an F.I.R. is impermissible. It was submitted that the accused have not even spared the civil court and after the agreement was signed the defendants, (who are accused), have added one line relating to Pandwai Sugar Cable Lines connection. Relying upon the affidavit filed in the application, more particularly in Criminal Misc. Application No.757 of 2007, it was submitted that the applicants have forged the documents and have tried to create false documents with an intention to use the same as evidence against the first informant in the civil court. It was further contended that as such the first informant has also filed an application for setting aside the settlement before the civil court and the same is pending. Further relying upon the documents, on the basis of which the impugned F.I.R. is lodged, it was submitted that the impugned F.I.R. does disclose the offences as alleged. It was submitted that not only that stamp papers of the same numbers are used but even the documents have been back-dated with the aid of the notary. It was submitted that the case of forgery and cheating is clearly made out from the bare reading of the impugned F.I.R. and it was submitted that the applications deserve to be dismissed. It was further submitted that the judgments relied upon on behalf of the applicants in the cases of Central Bureau of Investigation, SPE, SIU (X), New Delhi (supra) as well as Hira Lal Hari Lal Bhagwati (supra) would not be applicable in the facts of the present case. It was therefore submitted that the applications deserve to be dismissed.
(23) Having considered the contents of the impugned F.I.R. and the submissions made by the learned counsel appearing for the parties, the question which arises for consideration of this Court is whether on reading of the F.I.R. as it is any offences as alleged are culled out or not.
(24) To elucidate the contents of the F.I.R., which are set out hereinabove, it appears that the allegations are relating to preparation of documents which are referred to in the F.I.R. Though at the first blush it appears that it relates to a transaction which has contours of civil litigation. However, on close scrutiny of the impugned F.I.R. it prima facie appears that the applicants together have prepared the documents, which are enumerated in the F.I.R., which prima facie appear to be created/concocted documents. As the facts reveal from the record, though the suit is compromised the same is disputed by respondent No.2, who was the plaintiff and the record further reveals that respondent No.2 has filed applications under Section 340 of the Code before the civil court, which is pending.
(25) At thus juncture it would be appropriate to refer to the judgment of the Apex Court in the case of Indian Oil Corporation Vs. NEPC India Ltd. & Ors., (2006) 6 S.C.C. 736 wherein it has been held that if allegations in the complaint, taken at their face value, disclose a criminal offence, complaint cannot be quashed merely because it relates to a commercial transaction or breach of contract for which civil remedy is available or has been availed. The Apex Court has thus held:
"12.
The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State, NCT of Delhi, Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
13. The appellant has placed reliance on a decision of this Court in the case of Uma Shankar Gopalika v. State of Bihar [2005 (10) SCC 336], at page 338, wherein this Court has observed as follows :
"7.
In our view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120-B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused."
25.1)In the instant case though the documents are not used the F.I.R. on its face value does disclose prima facie the offence alleged. In addition to these as rightly pointed out by the learned Assistant Public Prosecutor the investigation is yet to be made as the investigation came to be stayed by this Court (Coram: K.S.Jhaveri, J) vide order dated 24.01.2007.
(26) From the bare reading of the impugned F.I.R. it cannot be said that no offences as alleged are culled out. Mr.Shah, learned advocate for the applicants (of Cri. Misc. Appln. No.757/2007), has tried to evaluate the allegations and has contended that at the most offences under Sections 417 and 192 of the IPC can be culled out from the impugned F.I.R. and they being non-cognizable offences the police authority cannot register the offence under Section 154 of the Code and, however, such an exercise under Section 482 of the Code in the the facts and circumstances of the case is not permissible.
(27) Mr.A.D.Shah, learned advocate for the applicants (of Cri. Misc. Appln. No.757/2007), has relied upon the case of Central Bureau of Investigation, SPE, SIU (X), New Delhi (supra), more particularly Paragraph Nos.24, 26 and 29, which are reproduced hereinbelow:
24.
Mr. Shanti Bhushan has also submitted that even if a view is taken that an offence of cheating as alleged in FIR is prima facie maintainable the offence of cheating is compoundable. In Civil proceedings, the claims of both the Banks have been satisfied and the disputes have been compromised in the civil suits filed by the Banks. Accordingly, it will no longer be a fit case for carrying out further investigation in respect of the offences alleged. Referring to a recent decision of this Court in Phiroze Dinshaw Lam v. Union of India (1996) 3 JT (SC) 131. Mr. Shanti Bhushan has submitted that in that case although a clear offence of fabrication of evidence had been established against Godrej Company and its Directors and officials, the Supreme Court set aside the order of the High Court directing a complaint to be filed holding that in view of all the circumstances including the payment of the Excise Duty, it would not be expedient to proceed against the accused person. Mr. Shanti Bhushan has submitted that any further investigation in the matter of offences alleged in the FIRs after such a long lapse of time and after the claims of the Banks have been satisfied in Civil Suits instituted by the Banks, is not at all expedient and on that score also no interference by this Court under the discretionary jurisdiction under Article 136 of the Constitution against the impugned decision of the High Court is not called for.
26. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the respective counsel for the parties, it appears to us that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complaint prima facie make out an offence or not. It is not necessary to scrutinise the allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. Any action by way of quashing the complaint is an action to be taken at the threshold before evidences are led in support of the complaint. For quashing the complaint by way of action at the threshold, it is, therefore, necessary to consider whether on the face of the allegations, a criminal offence is constituted or not. In recent decisions of this Court, in the case of Bhajan Lal (1992 AIR SCW 237) (supra), P.P. Sharma (1991 AIR SCW 1034) (supra), and Janata Dal (1993 AIR SCW 248) (supra), since relied on by Mr. Tulsi, the guiding principles in quashing a criminal case have been indicated.
29. In the facts of the case, it appears to us that there is enough justification for the High Court to hold that the case was basically a matter of civil dispute. The Banks had already filed suits for recovery of the dues of the Banks on account of credit facility and the said suits have been compromised on receiving the payment from the concerned Companies. Even if an offence of cheating isprima facieconstituted, such offence is a compoundable offence and compromise decrees passed in the suits instituted by the Banks, for all intents and purposes, amount to compounding of the offence of cheating. It is also to be noted that long time has elapsed since the complaint was filed in 1987. It may also be indicated that although such FIRs were filed in 1987 and 1989, the Banks have not chosen to institute any case against the alleged erring officials despite allegations made against them in the FIRs. Considering that the investigations had not been completed till 1991 even though there was no impediment to complete the investigation and further investigation are still pending and also considering the fact that the claims of the Banks have been satisfied and the suits instituted by the Banks have been compromised on receiving payments, we do not think that the said complaints should be pursued any further. In our view, proceeding further with the complaints will not be expedient. In the specified facts of the case, it appears to us that the decision of the High Court in quashing the complaints does not warrant any interference under Article 136 of the Constitution. We, therefore, dismiss these appeals.
27.1)It was submitted that the dispute in question, in relation to which the impugned F.I.R. is filed, is a matter of civil dispute and no offence of cheating is prima facie as such constituted and considering the fact that the parties have amicably settled the dispute before the civil court and in fact the first informant has taken advantage of this, this is a fit case for exercise of powers under Section 482 of the Code.
(28) Similarly, attention of this Court was invited in the case of Hira Lal Hari Lal Bhagwati (supra), more particularly Paragraph Nos.33-35, 38 and 45, which are reproduced hereinbelow:
33.
We shall now consider the judgment cited by learned senior counsel for the appellants in the case of Duncans Agro Industries Ltd., Calcutta (supra), which, inter alia, held that, "In the facts of the case, it appears to us, that there is enough justification for the High Court to hold that the case was basically a matter of civil dispute. The Banks had already filed suits for recovery of the dues of the Banks on account of credit facility and the said suits have been compromised on receiving the payments from the companies concerned. Even if an offence of cheating is prima facie constituted, such offence is a compoundable offence and compromise decrees passed in the suits instituted by the Banks, for all intents and purposes, amounts to compounding of the offence of cheating."
It was further held that, "Considering the fact that the claims of Banks have been satisfied and suits instituted by the Banks have been compromised on receiving payments, we do not think that the said complaints should be pursued any further. In our view, proceeding further with the complaints will not be expedient."
34. In our view, in the present case, the alleged criminal liability stands compounded on a settlement with respect to the civil issues and, therefore, the First Information Report was erroneously issued and was totally unwarranted. From the aforesaid judgment, the proposition that follows in the instant case is that the Kar Vivad Samadhan Scheme, 1998 issued by the Government of India was a voluntary Scheme whereby if the disputed demand is settled by the Authority and pending proceedings are withdrawn by an importer, the balance demand against an importer shall be dropped and the importer shall be immuned from penal proceedings under any law in force. We are, therefore, of the opinion that this judgment squarely comes in the face of any argument sought to be propounded by the respondent that the Kar Vivad Samadhan Scheme, 1998 does not absolves the appellants from criminal liability under the Indian Penal Code. The learned single Judge of the High Court of Delhi, in our opinion, has not appreciated the fact that the continuance of the proceedings in the instant case would only tantamount to driving the present appellants to double jeopardy when they had been honourably exonerated by the Collector of Customs by their adjudication and further the GCS of which one of the appellants is the General Secretary in which capacity he is accused in the present case was granted amnesty under the Kar Vivad Samadhan Scheme, 1998. In our opinion, the present case does not warrant subjecting a citizen especially senior citizens of the age of 92 and 70 years to fresh investigation and prosecution on an incident or fact situation giving rise to offence under both the Customs Act and the Indian Penal Code when the matter has already been settled. Likewise, the respondent herein has initiated criminal proceedings against Accused No. 2 and Accused No. 1, inter alia, on the ground alleging that the appellants in conspiracy with the co-accused named therein with each other have cheated the Government of India in terms of evasion of Customs Duty and by concealment of facts obtained CDEC in respect of MRI and Lithotripsy machines and by violating the provisions of 'actual user' condition as per Import Export Policy and Customs Notification No. 279/83, dated 30-9-1983 and Customs Notification No. 64/88, dated 1-3-1988 during the year 1987-90, despite acknowledging the fact that Customs Duty has been paid by the appellants to the Customs Department and settled and that commission of offences under S. 120-B read with S. 420 of the Indian Penal Code are made out.
35. In our view, under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In the instant case, the said law which prevails in the field i.e. the Customs Act, 1962 the appellants have been therein under wholly discharged and the GCS granted immunity from prosecution. It is well established principle of law that the matter which has been adjudicated and settled need not to be dragged into the Criminal Courts unless and until the act of the appellants could have been described as culpable. The true fact and import of the Kar Vivad Samadhan Scheme, 1998, in our view, is that once the said Scheme is availed of and all the formalities complied with including the payment of the duty, the immunity granted under the provisions of the Customs Act, 1962 also extends to such offences that may prima facie be made out on identical allegations i.e. of evasion of customs duty and violation of any Notification issued under the said Act.
38. Likewise the ingredients of S. 420 of the Indian Penal Code are also not made out. There is no reason as to why the appellants must be made to undergo the agony of a criminal trial as has been held by this Court in the case of G. Sagar Suri and another v. State of U.P. and others, (2000) 2 SCC 636. In this case, this Court held that, "Jurisdiction under S. 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a Criminal Court has to exercise a great deal of caution. For the accused, it is a serious matter. The Supreme Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under S. 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under S. 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under S. 482 of the Code or Art. 227 of the Constitution to have the proceeding quashed against them when no offence has been out against them and still why must they undergo the agony of a criminal trial."
45. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it and, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under S. 420 of the Indian Penal Code does not arise. We have read the charge-sheet as a whole. There is no allegation in the First Information Report or the charge-sheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what where the roles played by the appellants in the alleged offence. The appellants, in our view, could not be attributed any mens rea of evasion of customs duty or cheating the Government of India as the cancer society is a non-profit organization and, therefore, the allegations against the appellants levelled by the prosecution are unsustainable. Kar Vivad Samadhan Scheme Certificate along with the Duncan's and Sushila Rani's judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has been compounded. It is also settled law that once a civil case has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process.
28.1)It was, inter alia, contended that in view of the settlement in the civil suit, and in view of the fact that the entire dispute was of a civil transaction, let justice be done in accordance with the terms of the agreement.
(29) It may be noted that as pointed by Mr.Trivedi, learned advocate appearing for respondent No.2-first informant, an application under Section 340 of the Code is already filed before Principal Civil Judge, Mangrol, which is numbered as Civil Misc. Application No.16 of 2007 in Regular Civil Suit No.42 of 2006, which is pending. It is the case of the first informant that after the settlement was signed, a photocopy of which is produced on record before the court, certain alterations/additions are made, more particularly one line relating to Pandwai Sugar Cable Lines connection. In view of such factual background of the present applications and in the facts and circumstances of the case arising out of the same, the judgments relied upon on behalf of learned advocate for the applicants would not be applicable, more particularly also considering the aspect that the applications are preferred at a stage when the investigation is yet to take place.
(30) In the judgment of Indian Oil Corporation (supra) itself the Apex Court has also observed that if the criminal proceedings are resorted to put undue pressure in civil dispute the same should be deprecated. However, considering the allegations leveled in the impugned F.I.R. it cannot be said that in the facts of this case the first informant has resorted to criminal proceedings to pressurize the applicants in the civil dispute.
From the allegations leveled in the impugned F.I.R. and the explanation sought to be rendered by the applicants it cannot be said that no prima facie offences as alleged in the impugned F.I.R. are culled out on the face of the contents of the F.I.R. The contentions raised on behalf of the applicants are a matter of appreciation of the evidence, which is not permissible at this stage and in the facts and circumstances of the case arising out of these applications it cannot be said that the trial would an abuse of process of court and would not serve the ends of justice. From the reading of the impugned F.I.R. serious allegations are made out and in the opinion of this Court and it does disclose prima facie offences as alleged in the impugned F.I.R.
(32) The Apex Court in various judgments have held that powers under Section 482 of the Code are to be exercised with circumspection and only in rarest of rare case such as when the complaint does not disclose any offence. This Court is of the opinion that this Court cannot embark upon the genuineness of the allegations made in the complaint. It may be noted that the impugned F.I.R. clearly discloses that the documents referred in the F.I.R. have been created/concocted by the applicants having full knowledge that no such partnership exists and/or the property in question was never given on rent to the person named in the said rent note, which is mentioned in the impugned F.I.R. The F.I.R. also discloses that the notary has registered two documents with same registration numbers, the F.I.R. also further discloses that two non-judicial stamp papers bear the same registration numbers. All these cumulatively therefore leads to only one conclusion that the impugned F.I.R. does disclose the alleged offences under Sections 465, 466, 467, 468, 471, 420, 192 and 114 of the IPC and, therefore, this is not a fit case to exercise inherent jurisdiction vested in this Court under Section 482 of the Code.
(33) Resultantly, the applications fail and are accordingly dismissed. Ad-interim relief granted shall stand vacated. RULE discharged.
(34) Registry to place a copy of this order in connected matters.
Sd/-
[R.M.CHHAYA, J ] FURDER ORDER:
After pronouncement of the aforesaid judgment, Mr.Ekant Ahuja for Mr.A.D.Shah, Ms.Shaili Kapadia for Mr.Arpit Kapadia and Mr.Deep Vyas, learned advocates appearing for the respective applicants in the aforesaid matters, pray for continuation of the ad-interim relief granted earlier by this Court to enable the applicants to approach the higher forum.
Considering the fact that the ad-interim relief was granted since 2007 and the same has continued till date, the ad-interim relief shall continue till 08.07.2013.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 31 of 31