Allahabad High Court
Vikram Capoor vs The State Of U.P And Anr. on 17 January, 2015
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 21 Reserved on 17.12.2014 Delivered on 17.01.2015 Case :- U/S 482/378/407 No. - 5323 of 2013 Applicant :- Vikram Capoor Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Shishir Pradhan Counsel for Opposite Party :- Govt. Advocate Hon'ble Vishnu Chandra Gupta,J.
Judgement By means of the present petition under section 482 Code of Criminal Procedure Code (For short ''Cr.P.C.') the petitioner Vikram Capoor has prayed for quashing of the proceedings of Criminal Complaint Case No. 209 of 2013, Ani Capoor Vs. Vikram Capoor pending in the court of Judicial Magistrate-II, Lucknow and also the order impugned dated 25th September, 2013, whereby the petitioner has been summoned to face trial under sections 355, 409 504 and 506 IPC.
Brief facts germane to the present case are that petitioner is a nephew of opposite party no. 2 Ani Capoor. A business in the name of M/s Capoor Hotel and Restaurant was running in the partner-ship of petitioner and opposite party no. 2. Both were partners of equal share i.e. 50% each. The partnership deed was executed in between them. During continuance of the partnership some dispute arose and opposite party no. 2 made applications to the Station Officer of police station Hazratganj, District Lucknow on 7.5.2007 and on 8.5.2007 and also to S.S.P. Lucknow on 9.5.2007 by sending the same by registered post alleging therein that petitioner with intention to cause pecuniary loss to the opposite party no. 2 and with mala fide intention prepared a forged acknowledgement dated 22.3.2007 along with receipts thereof by making forged signature of opposite party no. 2, by which a letter (notice of proceedings) dated 21.3.2007 was said to be served upon opposite party no. 2. This forged acknowledgement was used in the arbitration proceedings pending in the court of District Judge, Lucknow by the petitioner with intention to deprive her from legal rights to contest. This all has been done by the petitioner to dislodge her from the partnership property with connivance of courier company.
Opposite party no. 2 moved an application under section 156 (3) Cr.P.C. with similar allegation on 11.5.2007 (Annexure no. 3 to this petition). which was registered as Criminal Misc. Case No. 447 of 2007. The learned Chief Judicial Magistrate, Lucknow rejected the same by means of order dated 27.5.2007 on the ground that application under section 340 Cr.P.C. was given before District Judge where forgery was committed. In this regard what proceeding has been done by the District Judge, has not been mentioned by the opposite party no. 2 nor any order of the District Judge has been filed by her.
Opposite party no. 2 moved another application under section 156 (3) Cr.P.C on 19.5.2007 (Annexure no. 5 to this petition) alleging therein that partnership deed was executed in between petitioner and opposite party no. 2 on 31.10.1995 and the same was signed by them. The petitioner with intent to cause pecuniary loss to opposite party no. 2 and with mala fide intention prepared forged documents on different dates by manipulating the bills of hotel and the amount under the bills paid by the customers was misappropriated by the petitioner. The bills have been removed from the computer. As such the petitioner has also committed criminal offence by causing pecuniary loss to Trade Tax Department. It was also alleged that in terms of partnership deed the income of the hotel has to be deposited in CC Account No. 253 of Capoor Hotel and Restaurant with Federal Bank Ltd. Vidhan Sabha, Lucknow but the same was not deposited with the aforesaid bank, which was actually deposited in the personal account of petitioner having Account No. 0294000100723466 in Punjab National Bank, Hazratganj, Lucknow. As such he committed breach of trust. He also prepared forged documents by making fictitious signature of opposite party no. 2 thereon so that the entire amount under partnership deed shall be deemed to be paid to her and false balance-sheet has been prepared and used as genuine by filing the same before trade tax authority. It was also alleged that on 8.5.2007 at about 9.00 p.m. the opposite party no. 2 made a complaint of all these things to the petitioner. The petitioner abused her in filthy language and put his license revolver on her chest and threatened her to go back otherwise she will be killed. In this regard she tried to lodge first information report, but the same was not lodged. Consequently she moved the application under section 156 (3) Cr.P.C on 19.5.2007, which has been registered as Criminal Misc. Case No. 472 of 2007. On the same date, the learned Magistrate called for report from concerned police station and asked as to why the offence has been registered so far. In pursuance thereof the FIR has been lodged against petitioner at case crime no. 409 of 2007 under section 420,406,467,468,471,504 and 506 IPC. P.S. Hazratganj, District Lucknow on 8.6.2007.
The opposite party no. 2 moved an application on 15.6.2007 to the DGP, Lucknow accompanied with affidavit stating therein that the matter has been compromised in between the parties, hence she does not want to launch criminal proceedings initiated against petitioner in pursuance of FIR lodged on 8.6.2007 at case crime no. 409 of 2007 under section 420,406,467,468, 471,504 and 506 IPC P.S. Hazratgang, Lucknow and the same may be closed and final report may be submitted by the police. The police investigated the case and submitted final report in this case.
It is pertinent to mention here that when the dispute was going on, the compromise has been arrived at in between the parties and the Memorandum of Understanding (M.O.U.) was came into existence (Annexure no. 1 to the supplementary affidavit filed by the petitioner on 28.11.2014). This MOU was executed on 8.6.2007. In pursuance of this MOU, the litigation relating to civil and criminal pending in between the parties were compromised.
The opposite party no.2 has moved an application for dismissal of petition under section 156 (3) Cr.P.C. as not pressed on 15.6.2007/16.6.2007. The learned Magistrate vide order dated 16.6.2007 rejected the same.
On 15.9.2010 the opposite party no. 2 filed Complaint Case bearing no. 13391 of 2010 (Annexure no. 9 to this petition) containing the allegations relating to alleged forgery of acknowledgement. In this complaint, it was also alleged that signature of O.P.No2 on the acknowledgement used in arbitration proceeding pending in the court of District Judge, Lucknow was found forged. The opposite party no. 2 examined herself under section 200 Cr.P.C. and the learned Magistrate summoned the petitioner vide order dated 19.1.2011 and 30.7.2013.
Aggrieved by the aforesaid orders the petitioner filed a petition no. 4535 of 2013 under section 482 Cr.P.C. This Court vide order dated 3.10.2013 allowed the petition and quashed the summoning orders dated 19.1.2011 and 30.7.2013 passed by the Additional Chief Judicial Magistrate-VIII, Court No. 23, Lucknow along with proceedings initiated thereof. The opposite party no. 2 challenged the order dated 3.10.2013 before Hon'ble Supreme Court by filing SLP having no. 9693 of 2014. The Apex Court admitted the same and issued notice to the petitioner.
During pendency of the proceeding in Apex Court opposite party no. 2 filed another complaint on 28.2.2013 having complaint case no. 2090 of 2013 with the allegation similar to allegations made in complaint which was dismissed as withdrawn on 6.6.2007. In this complaint the O.P.No2 also levelled similar allegations in paras 7 8,9,10 and 11 which were made in complaint dated 19.5.2007. In this complaint it has also been stated that when terms of MOU dated 8.6.2007 were not complied with by the petitioner, she gave notice to the petitioner on 25.10.2012, which was neither replied nor terms of MOU were complied with by him. It was also stated therein that under great pressure exerted by her the petitioner inducted his son in her place in the partnership business to the extent of 50% share in the same. It was also stated that offences in which compromise had taken place in compliance of MOU were non compoundable under the provisions of Section 320 (9) Cr.P.C.
In support of allegation in complaint she examined herself under section 200 Cr.P.C. and examined Sanjai Capoor, the son of opposite party no. 2 and Awadhesh Tiwari, the Care Taker of Gauri Apartment, 57 Merabai Marg, Lucknow where Sanjai Capoor is residing, under section 202 Cr.P.C. Thereafter the learned Magistrate summon the petitioner to face trial under sections 355/409/504/506 IPC vide impugned order dated 25.9.2013. These proceedings were put under challenge in this petition.
By means of supplementary affidavit the petitioner has filed MOU dated 20.6.2007 and the fresh partnership deed/tripartite agreement dated 23.8.2011, by which Sanjay Capoor was inducted as partner holding share of 50% in place of Ani Capoor. This fresh partnership deed was made effective from 1.09.2011. It was signed by Vikram Capoor, Ani Capoor and Sanjay Capoor in the presence of witnesses.
I have heard Shri Anil Kumar Tiwari, Senior Advocate assisted by Shri Shishir Pradhan, learned counsel for the petitioner, and Shri Salil Kumar Kumar Srivastava, learned counsel for opposite party no. 2 as well as learned AGA and also perused the record.
It has been contended by the learned counsel for the petitioner that that opposite party no. 2 filed the complaint with mala fide intention after concealing the material fact. It was asserted that real dispute arose after execution of partnership deed under tripartite agreement with effect from 23.8.2011, whereby Sanjay Capoor has been inducted as partner to the extent of 50% share. The opposite party no. 2 has executed a registered gift deed, who was the part of tripartite agreement dated 23.8.2011. This gift deed was executed on 23.07.10 in favour of Akshat Bajaj, who is the grand son of opposite party no. 2. By this gift deed 12.5% share of the partnership business was gifted to Akshat Bajaj. Akshat Bajaj served a legal notice dated 20.4.201i. He also filed Regular Suit No. 540 of 2012 against M/s Capoor Hotel and Restaurant and others which is pending in the court of Civil Judge (Senior Division), Lucknow. The matter of 50% share of opposite party no 2 was in dispute in between the son and grand son of opposite party no. 2 namely Sanjay Capoor and Akshat Bajaj. The petitioner requested to settle their dispute so that the business may not be adversely effected. Thereafter Opposite party no. 2 filed a Regular Suit bearing no. 774 of 2012 seeking cancellation of gift deed dated 23.7.2011. When the dispute arose amongst sons , grand son of opposite party no. 2 and opposite party no. 2, this complaint has been filed to put pressure upon the petitioner with mala fide intention in counter blast to the proceedings initiated in civil court. It was further submitted that matter which has already been compromised cannot be reopened and the proceedings are abuse of process of court.
Counter affidavit has been filed wherein factual matrix has not been disputed. It has been stated that present petition is not maintainable because remedy of filing revision against summoning order before sessions judge is available to the petitioner. Moreover, alternative remedy under section 245 (2) Cr.P.C. is also available where he may claim by moving the application before trial court.
It is also submitted that SLP is pending before Hon'ble Supreme Court. It cannot be said that matter has been finally decided regarding quashment of proceedings and there is no impediment in entertaining the fresh proceedings in respect of offence which is non compoundable.
It was further submitted that documents which are not form part of the record of trial court cannot be looked into in this proceeding .Moreover the said documents are not of unimpeachable character. It is also submitted that actually the O.P.No. Wants to execute a will in favour of minor grand son Akshat Capoor, but the mother of Akshat Capoor fraudulently got executed gift deed instead of will deed. It is also also submitted that investigation report filed by police before trial court in pursuance of order passed by learned Magistrate under section 202 Cr.P.C. is only for assistance for the Court and that cannot be used for quashing of the proceedings. It was further submitted that document relating to forgery would be submitted at the stage of section 244 Cr.P.C. Therefore, the proceedings cannot be quashed.
In view of submissions at Bar, for deciding the present petition the following are the question for consideration:-
1.Whether this petition under section 482 is not maintainable in view of availability of remedy to file revision against the order of summoning?
2.Whether this petition under section 482 is not maintainable in view of availability of remedy to file application under section 245(2) Cr.P.C?
3.Whether during pendency of SLP before Apex Court challenging the order of quashing the complaint and relating proceedings by High Court vide its order dated 03.10.2013 the O.P.No.2 have any right to file fresh complaint on the same allegation which were contained in earlier complaint which has been quashed by High Court vide its order dated 03.10.2013?
4.Whether the documents of the petitioner attached with his petition and not find place in the record of learned Magistrate could be looked into at this Stage?
5.Whether after entering into compromise and acting upon the same by the parties , any party to compromise have any right to file fresh criminal complaint on the same allegation after about 5 years, taking plea that offences compromised were non compoundable?
6.Whether the present proceedings are an abuse of process of Court and are liable to be quashed?
7.Whether action of filing the present complaint by O.P.No.2 is mala fide and she is also guilty of concealment of material fact? If so its effect.
Question No.1 The Hon'ble Supreme Court in Raj Kapoor v. State, (1980) 1 SCC 43, considered the question involved here and held in para 10 at page 48 :
"10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye case,(1977) 4 SCC 551 this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution "would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction".
In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10) "The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."
In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, in para 21 at page 480 the Hon'ble Apex Court after relying upon the Raj Kapoor's case held as under;
"21.------The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor v. State,(1980) 1 SCC 43. In that very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In that very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the court or any other extraordinary situation invites the court's jurisdiction."
It is well settled now that when Court finds that the proceedings are an abuse of process of Court and would not serve the ends of justice and the case falls within any of the category specified in BhajanLal's Case,1992 (Supp) 1 SCC335 the High Court may invoke its jurisdiction under section 482 Cr.P.C. The similar view has been taken by Apex Court in. Urmila Devi v Yudhvir Singh ,JT (2013)SC 262 held in para 41, though the order passed under section 204 Cr.P.C.of issuing process against an accused is not an interlocutory order and revisable under section 397 Cr.P.C but the order of Magistrate deciding to issue process or summons to an accused in exercise of his power under section 204 Cr.P.C , can always be subject matter of challenge under inherent jurisdiction of the High Court under section 482 Cr.P.C.
Question No.2 The power under section 245(2) Cr.P.C. is not the alternative remedy before superior court. It is the part of trial In other words it cannot be said that after passing of order under section 204 Cr.P.C. the remedy of trial is available so powers under section 482 Cr.P.C. cannot be invoked. Hence I am of the view that merely during trial accused may apply for discharge shall not preclude him for invoking jurisdiction of this Court under Section 482 Cr.P.C. as held in Umesh Kumar v. State of A.P., (2013) 10 SCC 591, at page 604 "The law does not prohibit entertaining the petition under Section 482 CrPC for quashing the charge-sheet even before the charges are framed or before the application of discharge is filed or even during the pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the Court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused from undergoing the agony of a criminal trial."
In Devendra Kishanlal Dagalia v. Dwarkesh Diamonds (P) Ltd.,(2014) 2 SCC 246, the Apex Court held that Magistrate after issuing summons under section 204 cannot review its order under any provision in view of express bar contained in section 362 Cr.P.C the only remedy is to challenge the same under section 482 Cr.P.C or under Article 227 of Constitution of India . Para 10 at page 250 is extracted below :
"10. The aforesaid provisions make it clear that the Magistrate is required to issue summons for attendance of the accused only on examination of the complaint and on satisfaction that there is sufficient ground for taking cognizance of the offence and that he is competent to take such cognizance of offence. Once the decision is taken and summons is issued, in the absence of a power of review including inherent power to do so, remedy lies before the High Court under Section 482 CrPC or under Article 227 of the Constitution of India and not before the Magistrate.
Hence provision under section 245(2) Cr.P.C. is not a bar to invoke jurisdiction of High Court under Section 482 Cr.P.C Question No.3 It is not in dispute that High Court has quashed the proceedings of criminal complaint case no 13391 of 2010 pending in the Court of JM-VIII,Lucknow vide order dared 3.10.2013 in Cri. M.C. No.4535 of 2013 under section 482 Cr.P.C. It is also not in dispute that against that ordera Special Leave petition has been filed in which there is no interm order staying the operation of the order passed by the High court. In view of the above the order of issuing summons to the petitioner passed in Criminal Complaint No. 13391 of 2010 cannot be enforced by passing fresh order of summoning in a fresh complaint on the same facts by the complainant. If it is permitted it will against the judicial discipline. The Complainant is bound by the orders passed by the High Court unless set-a-side or varied by the Apex Court. It is well settled principle of law that the things which could not be done directly cannot be permitted to be done indirectly as held in Patel Motibhai Narainbhai & anr. v. Dinubhai Motibhai Patel,(1996) 2 SCC 585. In AIR 1967 SC 295 Barium Chemicals and another Vs. Company Law Board and others and 1999 (3) SCC 422 Babu Verghese and others Vs. Bar council of Kerala and others it has been observed by the Apex Court that ''things should be done in the manner provided in the statute are not at all". Therefore, I am of the firm view that such a recourse is not available to the complainant of this case.
Question No.4 The question is not res intigra. In Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, at page 347 in para 29 and 30 the Hob'ble Supreme Court delineated certain steps to determine the veracity of a prayer for quashment raised by the accused by invoking the powers of High Court under section 482 Cr.P.C. :
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to herein above, would have far-reaching consequences inasmuch as it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5.If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
Therefore if the documents filed by the petitioner pass the test as discussed above can be looked into for exercising the powers under section 482 Cr.P.C.
In this case the documents filed by the petitioners are noSo far as the genuineness of documents relied upon by the petitioner in support of their claim annexed with their pleading has not been disputed. The correctness of these documents has not been refuted by the complainant. Therefore this Court has to evaluate the material relied upon by the petitioner with a view whether the same is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
Question no.5 This fact has not in dispute that all the civil and criminal matters has been ended in terms of compromise, i.e. MOU dated 20.7.2007. The parties had acted upon that MOU and changed their position in terms of MOU. It is true that this MOU also contain terms for withdrawal of criminal matters involving some of the offences which were non compoundable in view of section 320 Cr.P.C. but the same was not limited to alleged criminal actions of petitioner but also about the civil rights and dispute amongst the parties. The perusal of MOU reveals that in term no 10 the parties agreed to resolve future dispute s amicably and in the alternative by way of arbitration or they may again approach to Shri Murli Lunggani and Sri Raj Kanwal Chanana for their intervention. It is also not in dispute that this matter and dispute is in between the close relatives of a family in respect of business run since their ancestral. The Apex Court in Gian Singh v. State of Punjab, (2012) 10 SCC 303, at page 340 observed in respect of certain category of cases of compoundable offences in the following terms;-
"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."
The Apex Court in CBI v. Duncans Agro Industries Ltd., (1996) 5 SCC 591, at page 608 in para 29 observed that when parties compromise there civil dispute for which criminal proceedings are pending than the criminal proceedings may deemed to be compromised specially when criminal proceedings were not initiated for long time :
"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 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, amount to compounding of the offence of cheating. It is also to be noted that a 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 investigations and further investigations 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 special 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."
In Provident Fund Inspector, Tirupati v. Madhusudana Chaudhury,(2000) 9 SCC 506, the Hon'ble Supreme Court at page 506 observed that withdrwal of Complaint without complying provision under section 257 Cr.P.C will not come in the way in compromise in between the parties;
"------Admittedly on the basis of a complaint filed by the appellant and his statement being recorded, the Magistrate was fully satisfied as to the existence of a prima facie case and took cognizance and issued summons for the appearance of the accused persons. There cannot be any dispute that the complainant at any time before a final order is passed in a case can satisfy the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused and in such a case the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused against whom the complaint is so withdrawn. But there must be an existence of a request from the complainant indicating good grounds as to why the complainant wishes to withdraw and the Magistrate after applying his mind to the said request must be satisfied that in fact good grounds exist for withdrawal of the complaint."
In view of Gian Singh's case this case falls within the category of cases which could be compromised irrespective of the facts that they are non compoundable. It is true that intervention of Court is required either in the light of section 320 Cr.P.C. or under section 482 Cr.P.C in such cases. Here in this case in terms of MOU the police filed final report and court accepted the same by a judicial order, which has been allowed to become final by the O.P.No.2. The petitioner thereafter filed criminal complaint No. 13391 of 2010 on the basis of similar allegations as contained in earlier complaint which ended in final report on the basis of MOU. This complaint has been quashed by this Court on 3.10.2013.The conduct of the parties specially of the O.P.No.2 is important to be examined. Section 115 of Evidence Act provides that when a person has by his declaration,act or omission ,intentionally caused or permitted another person to believe a thing to be true and to act upon such belief , neither he nor his representatives shall be allowed , in any suit or proceedings between himself and such person or his representative , to deny the truth of that thing. It is also well settled that there shall be no estoppel against law. But while exercising the jurisdiction by the High Court under section 482 Cr.P.C., if the Court is satisfied on facts that any party has taking advantage of his own wrong under the garb of legal provision to cause substantial loss and injustice to other party this Court can pass the orders to otherwise secure the ends of justice and nothing in the Code of Criminal Procedure shall limit the inherent powers of this Court to make such order.
Question No.6 and 7Both the question are related to fact of the case and are so interlinked that they cannot be dealt separately, so they are being decided jointly.
After examining the facts of the case It reveals that in terms of MOU the son of O.P.No2 was inducted in the partnership and the O.P.N.2 retired from the partnership business as is evident from deed of partnership dated 23.8.2011 in which the O.P.No.2 was also one of the signatory. In MOU it has been clearly mentioned in term No.5 that non of the other children of O.P.No.2, Smt.Ani Capoor would claim any right in the said business of partnership and She will not ask or insist for making any other children of her as partner in the said firm.Further the other children of Smt. Ani Capoor namely Smt. Madhu Tondon ( her daughter), Sanjib Capoor (her son), Smt Pooja (widow of late Anand Capoor) her daughter in law for herself and being guardian has given undertaking in this regard. The O.P. No.2 on 23.8.11 retired from partnership after induction of his son Sanjay Capoor as partner to the extant of 50 % share in the partnership which Smt. Ani Capoor was holding. The facts reveals that while entering into this agreement of partner-ship the O.P.No.2 already gifted her share to the extent of 12.5% in the aforesaid partnership Firm by a registered gift deed to her grand son Akshat Bajaj through her mother. This fact has been concealed by Ani Capoor at the time of her retirement from Firm from petitioner. A notice has been given on behalf of Akshat Bajaj to petitioner. Than the petitioner asked O.P.No.2, Sanjay Capoor and M/O Akshat Bajaj to settle the dispute which is in respect of the extent of share of O.P.No.2. Akshat Bajaj also filled civil suit 540 of 2012 for accounting and for injunction from restraining the the firm from running the business. The stand in this regard of O.P.No.2 as mentioned in para 50 of C.A. is that;
"50.--------it is submitted that 12.5% share of partnership has been transferred to Akshat Bajaj through his mother by registered deed while factually the respondent No.2 was subjected to cheating and forgery by misrepresentation of fact and got the gift deed registered in place of will deed for which the suit for cancellation of gift deed has been filed and subsequently the transferee had filed a suit for accounting in which the application U/S 10CPC for stay of proceeding was given which was refused on 16.1.2013 against which the revision preferred by the respendent No.2 was allowed by the Court of District Judge by way of civil Revision No.33/2013 and matter has been remanded to Additional Civil Judge , Court No.20, Lucknow and the suit for cancellation of gift deed filed by way of RegularSuit No.774/2012-Ani Capoor Vs. Akshat Bajaj is pending before the court concerned."
The O.P.No.2 also stated in the same para that a Criminal Complaint in this respect has also been filed against Priyanka Bajaj and Harshit Bajaj under section 420/323 IPC which has been subjected to challenge under section 482 in Cr.M.C. No.88/2013 where in interim relief has been granted by the High Court and the same is pending.
In this litigation the worst sufferer is the petitioner. If in the light of this fact the case is scanned it is crystal clear that this complaint did not contain any new incident but is based on earlier incident which kin terms of MOU has come to an end. The summoning order reveals that there is no material so far as forgery or forged documents are concerned. Nor during investigation any such document has been provided to I.O. The learned Magistrate categorically stated in its order there appears to be a dispute in between the complainant and accused relating to family business of partnership and no explanation has been given of notice dated 25.10.2012. The complainant has given evidence in respect of incident of dated of 8.5.07 in the form of witnesses under section 202 Cr.P.C. Therefore on the basis of allegation the offence of criminal breach of trust and on 8.5.07 show of criminal force against complainant and for hurling abuses prima facie made out under section 355,409,504and 506 against the accused/petitioner. The learned Magistrate has rejected the report of investigation ordered by him in exercise of powers under section 202 Cr.P.C. where in police submitted the report that no such offence is made out.
It is important to mention here that notice which alleged to have been given has been given is described in para 4 of complaint. In Para 4 it has been stated that Vikram Capoor is his nephew and he made false promise that we both brothers shall compromise and yo do not proceed with the cases. Because the complainant is old , weak, and widow and the accused is powerful and wants to garb the half share of my husband in the business she was compelled to give notice dated 25.10.2012 through registered post of this intention that you did not comply the terms of compromise so she will proceed her criminal cases against him. The accused did not reply the notice so the complaint is being filed.
It is important to note that in complaint there is no reference of partnership deed of dated 23.08.2011 by which she retired from partnership. She gave notice on 25.10.2012, that is after her retirement from partnership and after induction of Sanjay Capoor , her son, in her place to the extent of her share of 50%. After that she had no concern with the partnership business. No notice of grabbing the share has been given to accused petitioner by her son who is the existing partner in the firm. She also did not disclosed the fact of her retirement from firm nor mentioned any thing about the dispute raised by Akshat Bajaj. She is guilty of material concealment. It also shows that the ground for filing the complaint based on notice is wholly untrainable. It further shows that to screen her misdeed she wants to involve the petitioner in this mala fide prosecution. Thus the proceedings of this case in view of the aforesaid facts are nothing but an abuse of process of Court .
Moreover in absence of any document entrustment of money to the petitioner could not be established. Therefore in absence of any alleged forged document no case of misappropriation of money of partnership could be prima facie made out against the petitioner. Admittedly the dispute is of family business in which she has no concern now.
During the pendency of SLP filed by O.P.No.2 before Apex Court, O.P.No.2 cannot be permitted to file a fresh compliant on the same facts, specially when earlier compliant has been quashed by the High Court and the order of quashing compliant yet not set a side. In SLP. While filing fresh complaint the O.P.No.2 concealed material fact of dispute arising out of her retirement from firm and induction of his son as partner in his place on account of registered gift made in favour of Akshat Bajaj. The present complaint filed are based on the same facts which were contained in earlier complaint filed by O.P.No.2 and has been withdrawn after entering in to compromise in form of MOU in 2007. It is also important to note that MOU has been acted upon by the parties and the parties has changed there position in terms of MOU. On the basis of MOU all the civil proceedings on account of dispute relating to family business amongst the family members, arising out of the same cause of action giving rise to criminal proceedings earlier filed, were already compromised between the parties in Civil Court on the basis of compromise decrees. The criminal proceedings in between the petitioner and O.P.No.2 earlier filed against each other were also came to an end by withdrawal of those proceedings.
The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by the Apex Court in State of Haryana v. Bhajan Lal (1992 Supp (1) 335. The illustrative categories indicated by the Apex Court are as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused (6)Where there is an express legal bar en grafted 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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In view of the aforesaid discussion made the present criminal proceeding is manifestly attended with mala fide and 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. In the opinion of this Court, the case in hand is an extraordinary case based on extraordinary fact and circumstances wherein to prevent abuse of the process of the Court , this Court must exercise it inherent power to quash the proceedings to secure the ends of justice.
Consequently, This petition is allowed. The Criminal complaint Case No. No. 209 of 2013, Ani Capoor Vs. Vikram Capoor pending in the court of Judicial Magistrate-II, Lucknow and also the order impugned dated 25th September, 2013, whereby the petitioner has been summoned to face trial under sections 355, 409 504 and 506 IPC. are quashed.
Dated:17.01.2015 GSY