Gujarat High Court
Ismail Valibhai Momin & 3 vs State Of Gujarat & on 16 December, 2016
Author: A.J. Shastri
Bench: A.J. Shastri
R/CR.MA/6338/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 6338 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ISMAIL VALIBHAI MOMIN & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ABHISHEK M MEHTA, ADVOCATE for the Applicant(s) No. 2 - 4
UNSERVED-EXPIRED (N) for the Applicant(s) No. 1
MR HRIDAY BUCH, ADVOCATE FOR MR. JAVED S QURESHI, ADVOCATE
for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 16/12/2016
CAV JUDGMENT
1. The petitioner by way of present petition has questioned the complaint being C.R. No. I-158 of 2009 lodged before Khatodara Police Station, Surat for the offences punishable Page 1 of 28 HC-NIC Page 1 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT under Sections 406, 409, 420 and 120(B) of Indian Penal Code.
2. The case of the petitioner is that, petitioner no.1 had purchased a property being Shop Nos. 105 and 106 in Surya Plaza near Udhna Darwaza, Surat and the builder has issued possession receipt in favour of petitioner no.1 on 24.11.2005. The petitioner no.1 had paid full consideration towards the said purchase of shops and the registered sale-deed has been executed for the said shops later on after a period of three years in May 2008 as certain formalities were pending with the builder. It is the further case of petitioner that petitioner no.1 wanted to start a restaurant business in the name and style of Sunrise Restaurant in this property and therefore, immediately after purchase of the shops in November 2005 he applied for license under the Prevention of Food Adulteration Act, 1954 before Surat Municipal corporation and same was issued on 06.01.2006. Petitioner no.1 has also got BSNL telephone connection in March 2006 and all required necessary licenses have also been obtained later on from Police commissioner office as well as the other authorities. It is further the case of the petitioner that petitioner nos. 1, 2 and 3 have entered into a partnership with other seven persons including respondent no.2, who is the original complainant and the deed was executed on 21.04.2006, wherein the shares of petitioner nos.1, 2 and 3 and the profit and loss was also fixed at 8%, 30% and 4% respectively, aggregating to 42% shares and rest of 58% were to be divided amongst other seven partners and it has been ascertained that respondent no.2, original complainant, had only 8% in profit and loss of the partnership business. It is also the case of the petitioner that in view of stipulation contained in partnership deed the working partners Page 2 of 28 HC-NIC Page 2 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT were petitioner no.1 and 3 on whose shoulder the overall responsibility of managing the affairs of the restaurant and hotel was lying during the passage of time. It is the case of the petitioner that since restaurant / hotel was running smoothly, respondent no.2 herein wanted to take over the management of the restaurant and wanted to kick out petitioner nos. 1, 2 and 3 from managing the affairs of restaurant and hotel and therefore, has started interference and creating troubles. The case of the petitioner further is that respondent no.2 herein was harassing the petitioner nos.1 to 3 while they were returning their home in night from the business place as the normal routine hours were up to 11.30 in night. Petitioner no.3 was returning in the mid-night after finishing the work of restaurant by 12.30 in the night. On 18.02.2007, petitioner no.1 was in a suspicious manner met with an accident and since then was bed-ridden was not even able to perform his day to day routine work. Taking advantage of this situation, respondent no.2 and colleagues were neither partners nor in any way connected with the business which petitioners were handling on account of which the complaint came to be filed by petitioner nos. 2 and 3 before Police Commissioner on 29.01.2009 and subsequently, on account of intervention of police it is the case of the petitioner that they were compelled to make compromise so much so that petitioner no.3 had to file a Regular Civil Suit No.63 of 2009 before the Civil Court on 02.02.2009 against other partners including respondent no.2 for declaration and permanent injunction restraining the defendants including respondent no.2 from taking over the management of hotel. However, interim injunction application Exh.-5 is stated to have been pending though submitted in 2009.
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3. It is further the case of the petitioners that to circumvent that other proceedings, respondent no.2 had filed a complaint before Police Commissioner against the petitioners by making frivolous allegation on 11.02.2009 immediately after the returning date of the aforesaid suit and subsequently, on 21.05.2009 the present complaint came to be lodged by respondent no.2 against petitioner before Khatodara Police Station, Surat for the offences punishable under Sections 406, 409, 420 and 120(B) of Indian Penal Code and by stating to be a case of counter blast against this complaint the petitioners have preferred present Criminal Misc. Application for quashment of the complaint being C.R. No.158 of 2009 lodged before Khatodara Police Station.
4. Perusal of the impugned complaint indicates that respondent no.2 has alleged that in collusion with each other the petitioners though were all not partners in the partnership continued the business of restaurant in Shop No.105, 106, 107 and 108 and an attempt is made to use the name of partnership business for their personal gain and executed the sale documents in their favour and the advocate fee as well as stamp duty charges have also been paid out of the funds of partnership and it is further been alleged that though Sameer Monin, one of the petitioners, is not a working partner still by taking advantage of the funds of the partnership a misappropriation has been made in collusion with each other and by showing less profit of the business a serious offence of misappropriation criminal breach of trust is committed and by narrating in detail the complaint came to be filed. It is this FIR, which is registered as C.R. No.I-158 of 2009, is made the subject matter of the present proceedings on the premise that Page 4 of 28 HC-NIC Page 4 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT the dispute is of civil nature. The petitioners have not committed any offence and the allegations which are leveled in the complaint are ex-facie false and frivolous and there is no question of misappropriation of any nature and by relying upon the case of State v. Dev Kishan Narayan Agrawal reported in 1958 Bombay Law Reporter 1413, a petition is brought before this Court, wherein on 07.08.2009 the Hon'ble Court was pleased to admit the petition and granted interim relief staying the further proceedings of FIR being C.R. No.I-158 of 2009. Later on, the petition from time to time has come up for hearing and resultantly, has come up for final hearing on 30.11.2016 before this Court.
5. The learned advocate, Mr. Abhishek M. Mehta, appearing for the petitioners, has at the outset stated before the Court that during the pendency of proceedings petitioner no.1 Ismail Valibhai Momin has expired and it has also been stated that petitioner no.4 has not been presented at any point of time as partner or connected with the partnership deed. It is pointed out further before the Court that essentially the dispute which has arisen is out of the affairs of the partnership business and therefore, for breach of terms of the partnership deed the action was entail. Civil consequences and criminal machinery may not be put to motion to apply any pressure upon the petitioner. It is also contended by the learned counsel for the petitioner that initially the entire controversy is generating the dispute pertaining to civil nature and therefore, this complaint may not be allowed to be utilized as a lever to abuse of the process of law and therefore, this is nothing but a glaring example of an abuse of the process of law. It is further contended by the learned counsel that the entire criminal Page 5 of 28 HC-NIC Page 5 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT complaint is aimed at pressurizing the petitioners and there is no malafide intention behind it in as much as that petitioner no.4, who is the daughter has nothing to do with the partnership firm nor is a party to deed. Still, she has also been dragged into prosecution. It is further contended by the counsel for the petitioner that this impugned complaint is nothing but an outburst of the version taken by the petitioner by filing a civil suit and filing an injunction application because after the civil suit have been filed the present complaint came to be filed by respondent no.2 and therefore, this being a position complaint is nothing but an outburst and counter blast of the steps taken by petitioners. By referring to the complaint, the learned counsel has stated that that all allegations even if taken up in as it is form the same would generate into a civil dispute and not a criminal element in any manner. It has also been pointed out that a partnership deed has provided a resolution clause to deal with the dispute either by arbitration or by filing a civil suit. No such steps have been taken or initiated by respondent no.2 except filing present complaint. To resolve the dispute some proceedings either in the form of arbitration or in the form of civil suit could have been initiated. However, except filing present complaint no steps have been taken which reflects clear intention of respondent no.2. It has also been specifically contended that the property in question i.e. shops, which are referred to, have been brought by petitioner no.1 as a capital in partnership business otherwise the ownership of these shops is altogether that of petitioner no.1 alone and by referring to some of the document attention is drawn that allegation of using partnership business for the purpose of purchasing property in the personal name is ex- facie frivolous. The partnership business has started at a much Page 6 of 28 HC-NIC Page 6 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT later point of time then the property has been purchased by petitioner individually and therefore, main allegation itself in the complaint is falsifying by its very document. It has also been referred to the other parts of the petition compilation consisting of other such documents, wherein an attention is tried to be drawn that the petitioners had to file the criminal complaint before Police commissioner on 25.05.2009 and an attempt is made by respondent no.2 with an aid and assistance of other to see that the petitioners may put themselves to the terms of respondent no.2 and therefore, the counsel submitted that this is a property dispute and the dispute pertaining to partnership can well be examined in the civil proceedings and therefore, the complaint is nothing but an arm twisting method adopted by respondent no.2. It has also been pointed out that there is no question of any offence being committed of Section 406, 409 of 420 of IPC in any manner and therefore, the complaint in question is nothing but an abuse of the process of law.
6. The petitioners' counsel has further submitted that dispute appearing to have been arisen much before and therefore, at a belated stage the complaint in question filed, more particularly, after filing of the suit and injunction application and therefore, by referring to a decision reported in (2008) 11 SCC 670, the counsel has contended that this is a fit case in which the dispute is of a civil nature and criminal complaint may not be allowed to be processed any further and therefore, considering this overall set of circumstance the learned counsel for the petitioner requested the Court that such step initiated may not be allowed to be encouraged and has also pointed out that respondent no.2 has threatened the Page 7 of 28 HC-NIC Page 7 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT petitioners to lock the premise of hotel and further threatened of dier consequences for which even PSI Mr. Priyadarshan was also taken in aid by respondent no.2 a specific assertion made in paragraph no.13 and 15 is pressed into service and thereby contended that this armed twist method adopted with the aid and assistance of police authority may not be allowed to be encouraged and the same would not be in the interest of justice and therefore, has requested the Court that by exercising jurisdiction under Section 482 of the Code of Criminal Procedure the complaint in question deserves to be quashed. No other submissions have been made.
7. To oppose this petition, the learned advocate Mr. Hriday Buch appearing for Mr. Javed S. Qureshi for respondent no.2 has contended that this is not a case of pure and simple nature of civil dispute. However, criminal elements are reflecting from the conduct of the petitioners. It has also been pointed out that there are several disputed questions of fact and therefore, no jurisdiction can be allowed to invoke by this Court under Section 482 of Code of Criminal Procedure Mr. Buch has further contended that a bare reading of the complaint would clearly indicate that the case is made out against petitioners prima facie and by referring to some of the documents attached to affidavit in reply contention is raised that this disputed questions of fact pertaining to the conduct of petitioners may not be examined at threadbare in present proceedings and the same to be left open for the trial court to be decided. By referring to the affidavit in reply, Mr. Buch, learned advocate has pointed out and contended that petitioner no.3 was treated as working partner in the firm and was also looking after the affairs of the restaurant so much so that petitioner Page 8 of 28 HC-NIC Page 8 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT nos.2 and 4, who are accused persons were remaining present in the restaurant and helped petitioner no.3 Sameer Ismail Momin and therefore, all petitioners jointly, as a family, were interfering with the affairs of the business of restaurant. It has been contended further that restaurant was running in smooth condition and was making profit. Resultantly, the petitioners have created false and frivolous account for the period commencing from 01.04.2006 to 31.03.2008 and the amount of profit is siphoned away in collusion with each other and this misappropriation of the amount from the business of partnership a property came to be purchased in individual name on 21.02.2008 in the name of Ismail Vali Momian and other two petitioners vide sale-deed dated 21.02.2008 bearing sale-deed no.12598 and 12595. Mr. Buch has further contended that there is a specific allegation contained in the complaint that there is a dishonest conversion of a joint property entrusted to the working partner which he held jointly on co-ownership basis still by executing criminal breach of trust and by making false entries in the accounts of the business dishonest conversion has been made. For substantiating this, Mr. Buch, the learned advocate has further submitted that even before the deed which has been executed the business of partnership was very much in existence, but the same was addressed in writing at a later point of time and by contending this the learned advocate has drawn the attention to the extract of account of Sunrise Restaurant for the financial year 2005-06 attached to the petition compilation at page 122 onwards. Not in detail but in brief an attention is drawn to some of the entries of this cash book of Sunrise restaurant attached to page 130 of the compilation, wherein entries have been lodged from April 2005 and some of the Page 9 of 28 HC-NIC Page 9 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT entries are specifically mentioned which would clearly indicate that the deed came to be executed. Subsequently, however, the business was already in operation and these accounts were handled and manipulated by petitioners. On the basis of this a further attention is drawn to other documents and by inviting the attention to a complaint dated 11.02.2009 filed by respondent no.2 before Police Commissioner, Surat and has contended that pursuant to the complaint the petitioners are already enlarged on bail. It has been pointed out that an anticipatory bail which was granted on 06.07.2009 in Criminal Misc. Application No.7819/2008 and later on regular bail has also been granted vide order dated 29.07.2007 in Criminal Misc. Application No.1309/2009 and therefore, by pointing out this the learned counsel has contended that there are series of disputed questions of fact, allegations and counter allegations are reflecting from the entire record and therefore, a proper investigation is required to be undertaken in the interest of justice. It is contended by the counsel that in exercise of powers under Section 482 of the Code of Criminal Procedure there are catena of decisions that this right of investigation of executive cannot be hampered by exercising of power under Section 482 of Cr.P.C. It has been contended that this is at a stage where FIR is to be intercepted which is not under normal circumstance permissible and therefore, counsel has submitted that if after investigation, if any adverse opinion is coming out against petitioner there is a remedy permissible under the law which can be availed by the petitioner and therefore, this FIR may not be allowed to be intercepted at the threshold in exercise of power under Section 482 of Cr.P.C. It is in this context the learned advocate Mr. Buch has resisted the petition, however, has candidly submitted that since the Page 10 of 28 HC-NIC Page 10 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT petitioner no.4 is a daughter of petitioner no.2 and petitioner no.1 has already passed away during pendency of petition and since the petitioner no.4 is not a partner referred to in partnership deed and there is no case appears to be against her so cogently qua her if the complaint to be quashed respondent no,.2 has no objection and therefore, upon this candid submissions the learned advocate Mr. Buch has vehemently submitted that the case is specifically made out against petitioner nos. 2 and 3 which requires to be investigated in detail and therefore, petition may not be entertained.
8. To deal with these rival submissions, the learned Additional Public Prosecutor Mr. Chintan Dave has submitted that this is not the stage where police complaint is sought to be quashed and further contended that right of investigation of police authority may not be hampered at this stage of the proceedings. It has been contended that there are series of decisions that disputed questions of fact simply reflects some allegations of civil nature then also this right of police authority at this stage of the proceedings may not be hampered. It is submitted that the petitioner cannot assume at this stage that no independent investigation will be undertaken simply by making allegation and counter allegation. The FIR cannot be stalled or throttled at the initial stage itself. The learned APP has further submitted that the complaint does not disclose the allegations pertaining to the offences which have been alleged and therefore, at this stage of the proceedings the exercise of inherent jurisdiction may not be undertaken. The learned APP has further submitted that these allegations are of a serious nature deserves to be inquired into and has further submitted Page 11 of 28 HC-NIC Page 11 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT that since the petitioners are granted regular bail no prejudice will cause to them or to their liberty in any manner and therefore, in the absence of any prejudice no interference be made at this stage. The learned APP has submitted that entire bulky record of petition would clearly establish that there is a serious dispute which is required to be inquired into at length and therefore, since several disputed questions of fact are emerging from the record no interference be made at this stage. It has been pointed out that merit or demerit of allegations contained in he complaint at this stage of the proceedings cannot be allowed to be made the subject matter of exercise of Section 482 jurisdiction and therefore, the learned APP has submitted that this is not a fit case for which inherent jurisdiction can be exercised. However, Mr. Dave has further pointed out candidly that on the basis of examination of material on record prima facie it appears that petitioner no.4, who is the daughter is not a partner in the partnership deed nor her name is figured in partnership deed and therefore, in view of candid concession of learned counsel Mr. Buch at this stage of the proceedings petitioner no.4 be spared from the process of complaint in question and therefore, it appears that upon broad consensus petitioner no.4 is not to be continued in the prosecution in the context of present FIR which is questioned in the proceedings.
9. Having heard the learned counsels appearing for the respective parties and having gone through the material on record and having perused the averments contained in the complaint following facts are emerging from the record prima facie;
(a) The petition is brought before this Court at a stage where Page 12 of 28 HC-NIC Page 12 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT investigation is yet to be undertaken and what is asked for is to quash the FIR;
(b) It is also emerging from the record that petitioner no.4 is not a partner in the partnership firm nor is reflecting from partnership deed and therefore, qua her the general allegation would not attract the clear case which is tried to be established;
(c) Further it is emerging from the record that there are series of disputed questions of fact about the conduct of petitioners in the partnership business and a serious allegation of misappropriation of funds of the partnership business is alleged. The allegation further is of a serious nature that funds of the partnership is utilized for the purpose of purchasing property in their individual names and thereby committed defalcation of money from the partnership;
(d) It is also emerging from the record that though it has been stated that the shops in question has purchased by the petitioner on 24.11.2005, but the registered sale-deed had taken place much after the time after commencing of business of partnership;
(e) It has been contended that partnership has started in the name of Sunrise Restaurant and specifically asserted by the petitioners that business has commenced after 2006, but then if we refer to the cash book and the ledger accounts of the Sunrise Restaurant, it indicates that the accounts recorded of this business have been prepared from 01.04.2005 and if we refer to the extract of cash book of this Sunrise Restaurant Page 13 of 28 HC-NIC Page 13 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT attached to the petition compilation at page 130, it transpires that there are series of entries in the month of April 2005, meaning thereby, these entries are prior to the commencing of business as alleged by the petitioner in 2006;
(f) It is also reflecting from the record that civil suit which has been filed is filed by one of the petitioners only i.e. petitioner no.3. A Regular Civil Suit No.63 of 2009 for the purpose of declaration and injunction and it is further reflecting from the record that injunction application is filed in the month of January 2009, wherein some notice came to be issued by the court none of the parties to the proceedings have pointed out any injunction is specifically operating which is prayed for is reflecting at page 99 of petition compilation;
(g) It appears from the record further that pursuant to the impugned complaint the present petitioners are directed by virtue of grant of regular bail vide order dated 29.07.2009 which is not in dispute and therefore, prima facie it appears that there are series of disputed questions of fact which are required to be adjudicated and investigated and at both ends serious allegations are leveled and therefore, these disputed questions of fact cannot be made the subject matter of exercise of inherent jurisdiction but since a candid submission has been made by the counsel for respondent no.2 about petitioner no.4, the Court has not examined the case in so far as it relates to petitioner no.4 and therefore, qua her the present complaint upon such broad consensus is ordered to be quashed and therefore, nothing much is commented or observed at this stage of the proceeding in respect of alleged act of respondent no.4;
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(h) So far as the contention raised by the learned counsel that if dispute is of civil nature even at the stage of FIR the Court can exercise power under Section 482 of Code of Criminal Procedure. The said case which has been brought to the notice reported in 2008 (11) SCC 670 if the background of fact is to be taken note of in the said case the FIR was lodged after a period of 2 years and furthermore, the court had a liberty to examine the entire factual details as detailed inquiry was already made and thereafter charge-sheet also came to be submitted on 13.05.2004 and therefore, the background of that fact was such in which court had an occasion to see the papers in detail the relevant material gathered during the course of investigation and therefore, the proposition of that case is not disputed at all, but the fact of present case is altogether different where at the initial stage itself the petitioners have not allowed the investigation to carry on and has approached this Court. Therefore, the facts of that case are distinct from that of the present case on hand and therefore, the same is not applicable as a straight jacket formula. It is other decision of law that if the facts are different then it would make a world of difference in applying the ratio laid down by a decision of the precedent and therefore, keeping this proposition in mind it appears to this Court that no much assistance is available from that very case to decide the present controversy. Therefore, the said case is not having any bearing upon the present circumstance.
10. However, in respect of other accused persons, it transpires from the averments of complaint itself that there are serious allegations of defalcation and misappropriation of funds of the partnership business. It is also emerging from the Page 15 of 28 HC-NIC Page 15 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT record that plea which has been taken that the partnership deed business has commenced after 2006 is also quite in contrast to the cash as well as ledger entries of Sunrise Restaurant accounts. The fact of purchases of property in the personal name is also substantiated by the fact that possession receipt was though of November 2005, but then the business has already commenced in the year 2005 as is reflecting from page 130 onwards and therefore, the allegation which is made that documents of the property is executed in personal name in the year 2008 deserves to be inquired into and therefore, the plea is not possible to be intercepted at this stage of the proceeding as is found contrary to the documents attached to the petition compilation. A further fact which is not to be unnoticed is that injunction application which was filed in the month of January 2009 is so far appearing to have not been granted and thereto the said proceedings have filed not by all petitioners but also petitioner no.3 which also indicates that the allegations and counter allegations deserve a thorough and proper investigation. From the foregoing circumstances prevailing on record, it is difficult to believe at this stage the contentions of the petitioner. The Court is of the considered opinion that this is at the stage of FIR where yet the investigation is to be conducted in detail and the Court is also of the opinion that after investigation appropriate summary can be filed by the police authority and therefore, at this stage it cannot be assumed in either way whether offence is committed or not. It is also not possible to be ignored that there is a normal rule of not intercepting investigation, more particularly, when the FIR is to be questioned by the Court in exercise of Section 482 of Cr.P.C. and therefore, these are the circumstances wherein the case of Page 16 of 28 HC-NIC Page 16 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT the petitioner at this stage of proceeding is not possible to be intercepted.
11. To this conclusion which is at this stage being arrived at the Court is conscious of some of the pronouncements by the Apex Court verdict on the issue of exercise of jurisdiction under Section 482 of CR.P.C. on FIR stage and therefore, keeping these principles in mind the Court has deemed it proper to refer to it hereinafter:
12. In case of Teeja Devi Alias Triza Devi reported in 2014 (15) SCC 221, the Hon'ble Apex Court has propounded a proposition that interference with criminal investigation is surely not to be undertaken and at the stage of FIR it has been held that High Court should not interfere even if it is a counter blast to civil action. This proposition was laid down in view of the fact that under the statute after filing report under Section 173 of Cr.P.C., the affected person must have his own remedy in accordance with law and therefore, directed to complete the investigation fairly with expeditiousness. The relevant extract of the said judgment is reproduced hereinafter:
"4. In view of the nature of the proposed order this Court has purposely avoided to go into factual details and controversy between the parties. This would prevent prejudice to the appellant as well as to the accused persons in future because after hearing the parties we are of the firm view that the order of the High Court is not in accordance with law and in the facts of the case no interference should have been made with the investigation by the police by quashing the FIR.
5. It has been rightly submitted by the learned counsel for the appellant that ordinarily power under Section 482 Cr.P.C. should not be used to Page 17 of 28 HC-NIC Page 17 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of Cr.P.C. As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclosed a cognizable offence, interference with the investigation is not proper and it can be done only in the rarest of the rare cases where the court is satisfied that the prosecution is malicious and vexatious.
6. In support of the aforesaid proposition the learned counsel for the State of Rajasthan placed reliance upon paras 15 and 16 of the judgment of this Court in State of Karnataka v. Pastor P. Raju.
7. The proposition of law indicated above has been consistently followed in a large number of cases and the learned counsel for the accused fairly submitted that the impugned order of the High Court can be sustained only in view of the factual report submitted by the investigating officer to the High Court. Since the report showed that after some investigation the allegations were found to be incorrect, the High Court accepted the view of the investigating officer and held that the FIR appears to be only a counter blast to the civil action initiated by the accused against the complainant for specific performance of an agreement for sale.
10. In view of the above discussion, the impugned order of the High Court under appeal is set aside. The appeal stands allowed. WE make it clear that the police will proceed to complete the investigation fairly with some expedition and submit the required report to the learned Magistrate who shall act in accordance with law without being influenced against either of the parties on account of the impugned order of the High Court of this order."
13. In case of Sesami Chemicals Pvt. Ltd. reported in 2014 (16) SCC 711, the Hon'ble Apex Court has held that Page 18 of 28 HC-NIC Page 18 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT when facts are seriously in dispute truth or otherwise of such facts can only be established by evidence at the trial and therefore, the court has indicated to refrain from exercise of inherent jurisdiction in that case also and FIR was quashed by the High Court on the ground that dispute purely covers by civil law in fact by criminal law. In that context, the Hon'ble Apex Court has quashed the High Court's order and opined as under:
"13. We are of the opinion that the petition filed by the contesting respondents under Section 482 of the Code of criminal Procedure, 1973 is an abuse of the process of the Court. As already noticed, the facts are seriously in dispute. The truth or otherwise of such facts can only be established by evidence at the trial. We are, therefore, of the opinion that the High Court erred in quashing FIR No.43(10) of 2011 dated 12-10- 2011. We, therefore, set aside the order of the High Court. The first respondent is directed to proceed with the FIR No.43(10) of 2011 dated 12- 10-2011 in accordance with law.
16. The parties are the same as in the earlier appeal. The facts are interconnected and highly contested. Therefore, we are of the opinion that the High Court erred in quashing the case. We, therefore, set aside the impugned order and direct Case No. 87(S) of 2012 to be proceeded with in accordance with law. Both the appeals are allowed accordingly."
14. Yet another proposition of law is also there that whether disputed questions of fact which are entangled in the proceedings even if the dispute is of a civil nature but the allegations are serious in nature no exercise of inherent jurisdiction is to be undertaken. The following are some of the propositions of law:
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15. In another case reported in 2015 (9) SCC 647, the Hon'ble Apex Court has also observed that even if some element of civil nature is reflecting, but if the allegations are serious in nature no exercise of inherent jurisdiction is normally to be undertaken and therefore, keeping this proposition in mind the Court is of the considered opinion that here also the allegations are made of a serious nature which desist the Court from exercising inherent jurisdiction. The relevant extract of the decision is reproduced hereinafter:
"10. No doubt, where the criminal complaints are filed in respect of property disputes of civil in nature only to harass the accused, and to pressurize him in the civil litigation pending, and there is prima facie abuse of process of law, it is well within the jurisdiction of the High Court to exercise its powers under Section 482 of the Code to quash the criminal proceedings.
However, the powers under the section are required to be exercised sparingly. In Kamaladevi Agarwal v. State of W.B. And others[2], this Court has observed as under: -
"This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly [pic]and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction."
11. Having considered the law laid down by this Court, as above, and further considering the facts and circumstances of the case and seriousness of the allegations made against the accused, particularly that one of the persons said to have executed the power of attorney was minor, and another was away from India, in our opinion, even if the civil suit was instituted by Page 20 of 28 HC-NIC Page 20 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT the complainant, the High Court committed no error of law in declining to interfere with the criminal proceedings initiated against the appellant in the present case."
16. The aforesaid factual matrix of the case on hand and propositions of law would lead to a situation where proper investigation is required to be conducted and therefore, in view of yet another proposition of law laid down by the Hon'ble Apex Court reported in 2014 (10) SCC 616. The 482 powers are to be exercised sparingly and not in a routine manner and therefore, looking to this proposition the Court is of the opinion that this is not a fit case to exercise inherent jurisdiction.
"13. It is well settled by this Court in a catena of cases that the power under Section 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent the abuse of the process of any court and to secure the ends of justice. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstance to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 Cr.P.C. An investigation should not be shut out at the threshold if the allegations have some substance."
17. It is in the background of these facts and circumstances the allegations prima facie do reflect some offences being committed as alleged more particularly of Section 406, 420 of IPC, but in view of the fact that no merit is to be examined in detail as held by the Apex Court in case of 2015 (11) SCC Page 21 of 28 HC-NIC Page 21 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT 260, the court is refrain from concluding at this stage about the allegations and therefore, this is not a stage where these elements and merits are to be examined at length and therefore, considering this overall set of circumstance prima facie the ingredients are reflecting of the offence which are alleged in the complaint and therefore, without examination in detail court is of the opinion that no case is made out. A reference is required to be made to these propositions and the relevant extracts of the decision is reproduced hereinafter:
(2015) 11 SCC 260:
"11. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander and Anr.[4], it was observed: (SCC pp. 482-84, para 27) "27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at Page 22 of 28 HC-NIC Page 22 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT the stage of framing of charge or quashing of charge.
27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7 The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials Page 23 of 28 HC-NIC Page 23 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10 It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11 Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal.
The Court has to consider the record and
documents annexed therewith by the
prosecution.
27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.Page 24 of 28
HC-NIC Page 24 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT 27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae I.e. to do real and substantial justice for administration of which alone, the courts exist.
(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; [pic]Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 :
1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State Page 25 of 28 HC-NIC Page 25 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).
27.16 These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
12. In Kailash Chandra Agrawal & Anr. vs. State of U.P. & Ors., it was observed: (SCC p. 553, paras 8-9) "8. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj vs. State of Punjab & Ors. [(2000) 5 SCC 207], it was observed:-
"5.........A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations Page 26 of 28 HC-NIC Page 26 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.
9. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court's process, quashing jurisdiction can be exercised.
Reference may be made to K. Ramakrsihna and Ors. vs. State of Bihar and Anr. [(2000) 8 SCC 547], Pepsi Foods Ltd. and Anr. vs. Special Judicial Magistrate and Ors. [(1998) 5 SCC 749], State of Haryana and Ors. vs. Ch.
Bhajan Lal and Ors. [(1992) Suppl 1 SCC 335] and Asmathunnisa vs. State of A.P. Represented by the Public Prosecutor, High Court of A.P., Hyderabad and Anr. [(2011) 11 SCC 259]."
18. In the premise aforesaid the Court is of the considered opinion that this is not a fit case for which the proceedings are to be intercepted at this stage and therefore, the petition being devoid of merits the same is dismissed hereby. It is made clear that since there is no contention raised by respondent no.2 in respect of petitioner no.4 and having Page 27 of 28 HC-NIC Page 27 of 28 Created On Sat Dec 17 00:54:53 IST 2016 R/CR.MA/6338/2009 CAV JUDGMENT conceded to quash the complaint qua petitioner no.4 and looking to the fact that prima facie she is not either a partner or reflecting in a partnership-deed nor allegations are cogently made against her, the complaint in question is quashed at his stage of the proceedings and so far as petitioner no.2 and 3 are concerned, petition being devoid of merits, the same is dismissed hereby. Rule is discharged. Interim relief, if any, stands vacated.
(A.J. SHASTRI, J.) Dolly Page 28 of 28 HC-NIC Page 28 of 28 Created On Sat Dec 17 00:54:53 IST 2016