Karnataka High Court
Prithvi D/O Vasant Naik vs The State Of Karnataka on 26 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 101332 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 101332 OF 2023
BETWEEN:
1. PRITHVI D/O VASANT NAIK,
AGE. 28 YEARS, OCC. HOUSEHOLD WORK,
R/O. JAMGOD, SHEDGERI, TQ. ANKOLA,
DIST. UTTARA KANNADA-581314.
2. SMT. SUGANDHA W/O VASANT NAIK,
AGE. 45 YEARS, OCC. HOUSEHOLD WORK,
R/O. JAMGOD, SHEDGERI, TQ. ANKOLA ,
DIST. UTTARA KANNADA-581314.
... PETITIONERS
(BY SRI. R.H. ANGADI &
SMT. POOJA SAVADATTI, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA,
(ANKOLA POLICE STATION).
Digitally R/BY STATE PUBLIC PROSECUTOR,
signed by
VISHAL
VISHAL
NINGAPPA THE HIGH COURT OF KARNATAKA,
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.10.16
DHARWAD BENCH, DHARWAD-580011.
13:45:40
+0530
2. MANZAR S/O HUSSAIN SAYYED,
AGE. 58 YEARS, OCC. BUSINESS,
R/O. AJJIKATTA, INSLAMPUR, TQ. ANKILA ,
DIST. UTTARA KANNADA-581314.
... RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP FOR R1;
SRI. SHIVA SHIRUR, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO ALLOW THE PETITION AND QUASH THE COMPLAINT,
FIR AND ENTIRE CRIMINAL PROCEEDINGS IN ANKOLA P.S. CRIME
NO. 54/2023, DATED 16.03.2023, FOR THE ALLEGED OFFENCES
P/U/SEC. 406, 420, 465, 468, 504, 506 R/W SEC. 34 OF IPC, AND
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CRL.P No. 101332 of 2023
PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
ANKOLA IN SO FAR AS PETITIONERS WHO ARE ARRAYED AS
ACCUSED NO.8 AND 9 ARE CONCERNED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court calling in question registration of a crime in Crime No.54/2023 for the offences punishable under Sections 406, 420, 465, 468, 504, 406 read with Section 34 of the IPC.
2. Heard the learned counsel Sri.R.H.Angadi and Smt.Pooja Savadatti appearing for the petitioners and the learned HCGP for respondent No.1 and Sri.Shiva Shirur for the respondent No.2.
3. A complaint comes to be registered by the 2nd respondent on 16.03.2023 alleging offences punishable under Sections 406, 420, 465, 468, 504, 506 read with Section 34 of the IPC. The petitioners are arrayed as accused Nos.8 and 9. The crux of the complaint is that the complainant had initially executed a general power -3- NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 attorney in the name of accused No.1 and the general power of attorney later had stood cancelled between the execution and the cancellation, one sale deed had taken place which could be valid and the sale deed in which the petitioners come in possession of the property as accused Nos.8 and 9 are said to be illegal on the score that the GPA had by then being cancelled and the cancellation had been notified by the complainant by way of a public notice.
4. It is on this score that the sale deeds that have taken place after the cancellation of the GPA are turning it to be illegal, the complainant has instituted original suit in O.S. No.8/2021 seeking cancellation of the sale deeds that are registered on the strength of the GPA. One such sale deed is the subject matter of the suit in which the petitioners are purchasers of the property. The complainant did not stop at that and seeks to register a private complaint in PCR No.20/2023 before the learned Magistrate invoking Section 200 of Cr.P.C. for the afore-
quoted offences. The Magistrate refers the matter for -4- NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 investigation under Section 156(3) of the Cr.P.C. which becomes a crime in Crime No.54/2023. It is the registration of crime that is called in question by the petitioners.
5. The primary contention of the learned counsel for the petitioner is that the private complaint is not sworn to by an affidavit as is necessary in law.
6. The primary contention of the learned counsel for the petitioner merits acceptance, as it is an admitted fact that the petitioners have filed a private complaint without an affidavit appended to it, as is necessary in law, more so, in the teeth of the fact that a seemingly civil dispute is given a color of crime. An affidavit, as is necessary in law, would have bound the complainant to the contents. Absence of an affidavit runs foul of the judgment of the Apex Court in the case of Babu Venkatesh and others v State of Karnataka and another reported in 2022 SCC online SC 200. The Apex Court has held as follows:
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15. It is also not in dispute that, written statements have been filed by Respondent 2 in all the said suits, between the period from 9-4- 2018 to 1-8-2018. It is the defence of Respondent 2 that, Appellant 1 who is the son of Appellants 2 and 3, is a moneylender and he lends money at a high rate of interest. It is the further defence of Respondent 2 that, when the respondents approached Appellant 1 for financial help, he used to take the respondents' signatures on the blank paper and also collected cheques signed by Respondent 2 as security for said loan.
16. It is the further contention of Respondent 2 that he had discharged the debt of Appellant 1 by paying an amount of Rs.56,50,000 (Rupees fifty-six lakhs and fifty thousand only) by way of RTGS to the account of Appellant 1. The execution of agreements for sale was specifically denied by Respondent 2.
17. After filing of the written statement on 9-4-2018 in OS No. 8020 of 2017, Respondent 2 on 10-9-2019 filed a complaint before Police Station Jayanagar, stating therein that, Appellant documents with regard to the properties belonging to Respondent 2 had created forged and his wife. He has stated in the said complaint that he has not signed the documents and that the appellants were taking advantage of the blank cheques and blank stamp papers. Thereafter on 18-9-2019, -6- NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 Respondent 2 filed a private complaint being PCR No. 12445 of 2019. He along with his wife filed three other private complaints being PCRs Nos. 12441, 12443 and 12444 of 2019 before the Court of IInd Additional Chief Metropolitan Magistrate, Bangalore, out of which the present proceedings arise.
18. It could thus be clearly seen that, the said complaint dated 10-9-2019, was filed almost after a period of two years from the date of institution of suits by Appellants 2 and 3, and almost after a period of one-and-a-half years from the date on which written statement was filed by Respondent 2.
19. It will be relevant to refer to the following observations of this Court in State of Haryana v.
Bhajan Lats which read thus: (SCC pp. 378-79, paras 102-103) "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise -7- NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their 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 -8- NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations -9- NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
20. It could thus be seen that, though this Court has cautioned that, power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, it has specified certain category of cases wherein such power can be exercised for quashing proceedings.
21. We find that in the present case, though civil suits have been filed with regard to the same transactions and though they are I contested by Respondent 2 by filing written statement, he has chosen to file complaint under Section 156(3) CFPC after a period of one-and-a -half years from the date of filing of written statement with an ulterior motive of harassing the appellants. We find that, the present case fits in the category of No. 7, as mentioned in State of Haryana v. Bhajan Lal.
22. Further we find that, the present appeals deserve to be allowed on another ground.
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23. After analysing the law as to how the power under Section 156 (3) CrPC has to be exercised, this Court in Priyanka Srivastava v. State of U.P.4 has observed thus: (SCC p. 306, paras 30-31) "30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
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31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
24. This Court has clearly held that, a stage has come where applications under Section 156(3) CrPC are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The Court has noted that, applications under Section 156(3) CrPC are filed in a routine manner without taking any responsibility only to harass certain persons.
26. This Court has further held that, prior to the filing of a petition under Section 156(3) CrPC, there have to be applications under Sections 154(1) and 154(3) CrPC. This Court emphasises the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3) CrPC. Inasmuch
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.
27. In the present case, we find that the learned Magistrate while passing the order under Section 156(3) CrPC, has totally failed to consider the law laid down by this Court.
28. From the perusal of the complaint it can be seen that, the complainant Respondent 2 himself has made averments with regard to the filing of the original suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3) CrPC. The High Court has also failed to take into consideration the legal position as has been enunciated by this Court in Priyanka Srivastava v. State of U.P., and has dismissed the petitions by merely observing that serious allegations are made in the complaint.
7. The first lacuna is as aforesaid. The next would be, that a seemingly civil dispute is sought to be dressed with a color of crime, as the complainant himself is before the civil court seeking cancelation of the sale deeds that are
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 executed after the cancelation of the GPA. If the complainant has sought the remedy of approaching the civil Court and rightly so, the present proceedings in Crime No.54 of 2023 would become an abuse of the process of law and run foul of the plethora of judgments rendered by the Apex Court.
8. It is not in dispute that the petitioners are bona fide purchasers of the property and are defendants in the suit which the complainant has registered seeking cancellation of the sale deeds. Reference being made to the judgment of the Apex Court in the case of Randheer Singh v.
State of Uttar Pradesh reported in 2021(14) SCC 626 in the circumstances would become apposite. The Apex Court has held as follows:
"27. In Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929] , this Court held as under : (SCC pp. 757-60, paras 19-24 & 27-30) "19. To constitute an offence under Section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or
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(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 offence punishable under Sections 417, 418, 419 or 420 of the Code.
A clarification
23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is, the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.
24. The term "fraud" is not defined in the Code. The dictionary definition of "fraud" is 'deliberate deception, treachery or cheating intended to gain advantage'. Section 17 of the Contract Act, 1872 defines "fraud" with reference to a party to a contract.
***
27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in Section 24 as follows:
'24. "Dishonestly".--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".'
28 [Ed. : Para 28 corrected vide Official Corrigendum No. F.3/Ed.B.J./149/2009 dated 6-10-2009.] . To "defraud" or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (Sections 206, 421 and 424).
(ii) Fraudulent claim to property to prevent seizure (Section 207).
(iii) Fraudulent suffering or obtaining a decree (Sections 208 and 210).
(iv) Fraudulent possession/delivery of counterfeit coin (Sections 239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (Sections 246 to 253).
(vi) Fraudulent acts relating to stamps (Sections 255 to
261).
(vii) Fraudulent use of false instrument/weight/measure (Sections 264 to 266).
(viii) Cheating (Sections 415 to 420).
(ix) Fraudulent prevention of debt being available to creditors (Section 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (Section 423).
(xi) Forgery making or executing a false document (Sections 463 to 471 and 474).
(xii) Fraudulent cancellation/destruction of valuable security, etc. (Section 477).
(xiii) Fraudulently going through marriage ceremony (Section 496).
It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 other law, unless that fraudulent act is specified to be an offence under the Code or other law.
Section 504 of the Penal Code
29. The allegations in the complaint do not also make out the ingredients of an offence under Section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation of the complainant is that when he enquired with Accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to Appellants 1 and 2, it cannot be said to amount to an "insult with intent to provoke breach of peace". The statement attributed to the accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by the first appellant in favour of the second appellant.
Conclusion
30. The averments in the complaint if assumed to be true, do not make out any offence under Sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under Section 341 and causing hurt under Section 323IPC."
28. In Paramjeet Batra [Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673 : (2012) 4 SCC (Cri) 76] , this Court held that : (SCC p. 676, para 12) "12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
29. In Uma Shankar Gopalika [Uma Shankar Gopalika v. State of Bihar, (2005) 10 SCC 336 : (2006) 2 SCC (Cri) 49] , this Court found that the complaint, in that case, did not disclose any criminal offence at all, much less any offence under Section 420 or Section 120-BIPC. The case was purely a civil dispute between the parties for which remedy lay before the civil court.
30. In Vesa Holdings (P) Ltd. [Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293 : (2015) 3 SCC (Cri) 498] , this Court held : (SCC pp. 297-98, para 13) "13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court [Maniprasad v. State of Kerala, 2011 SCC OnLine Ker 4251] committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."
31. In Robert John D'Souza [Robert John D'Souza v. Stephen V. Gomes, (2015) 9 SCC 96 : (2015) 3 SCC (Cri) 724] , this Court held : (SCC pp. 100-01, paras 12- 13 & 15-16) "12. As far as the offence of cheating is concerned, the same is defined in Section 415IPC, for which the punishment is provided under Section 420IPC. Section 415 reads as under:
'415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
Illustrations *** From the above language of the section, one of the essential ingredients for the offence of cheating is deception, but in the present case, from the contents of the complaint it nowhere reflects that the complainant was deceived or he or anyone else was induced to deliver the property by deception. What was done, was so reflected in the resolutions, and sale deeds.
13. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] a three-Judge Bench of this Court has laid down the law as to quashment of proceedings under Section 482CrPC as follows : (SCC p. 695, para 7) '7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.'
15. In Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 :
(2008) 1 SCC (Cri) 259] , this Court in paras 25 and 46 has observed as under : (SCC pp. 10-11 & 16) '25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [Connelly v. Director of Public Prosecutions, 1964 AC 1254 : (1964) 2 WLR 1145 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [Director of Public Prosecutions v. Humphrys, 1977 AC 1 : (1976) 2 WLR 857 (HL)] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.
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46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.'
16. In view of the above discussion and the facts and circumstances of the case, we are of the view that none of the offences for which the appellants are summoned, is made out from the complaint and material on record. We further find that it is nothing but abuse of process of law on the part of the complainant to implicate the appellants in a criminal case after a period of twelve years of execution of registered sale deeds in question, who is neither party to the sale deeds nor a member of the Society. Therefore, we allow the appeal and set aside the orders passed by the High Court [Walter D'Mello v. Stephen V. Gomes, 2014 SCC OnLine Kar 12058] and that of the courts below. Accordingly, the order passed by the Magistrate summoning the appellants in the criminal complaint filed by Respondent 1, in respect of the offences punishable under Sections 406, 409 and 420IPC, also stands quashed."
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32. In Kapil Agarwal [Kapil Agarwal v. Sanjay Sharma, (2021) 5 SCC 524 : (2021) 2 SCC (Cri) 634] , this Court observed that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment.
33. In this case, it appears that criminal proceedings are being taken recourse to as a weapon of harassment against a purchaser. It is reiterated at the cost of repetition that the FIR does not disclose any offence so far as the appellant is concerned. There is no whisper of how and in what manner, this appellant is involved in any criminal offence and the charge- sheet, the relevant part whereof has been extracted above, is absolutely vague. There can be no doubt that jurisdiction under Section 482CrPC should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra [Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673 : (2012) 4 SCC (Cri) 76] extracted above.
34. The given set of facts may make out a civil wrong as also a criminal offence. Only because a civil remedy is available may not be a ground to quash criminal proceedings. But as observed
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 above, in this case, no criminal offence has been made out in the FIR read with the charge-sheet so far as this appellant is concerned. The other accused Rajan Kumar has died.
35. The appeal is, thus, allowed. The impugned judgment and order [Rajan Kumar v. State of U.P., 2020 SCC OnLine All 1669] of the High Court is set aside and the proceedings in Crime Case No. 5973 of 2020 are quashed as against the appellant."
9. In the light of the aforesaid facts and judgments rendered by the Apex Court, permitting further proceedings would become an abuse of the process of law and result in miscarriage of justice.
10. For the aforesaid reasons, the following ORDER i. The petition is allowed.
ii. The FIR in Crime No.54/2023 of Ankola Police Station, pending on the file of the learned Principal Civil Judge and JMFC, Ankola, stands quashed qua the petitioners.
iii. It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of the petitioners/accused 8
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NC: 2023:KHC-D:11440 CRL.P No. 101332 of 2023 and 9-purchasers of the property. The same would not bound any other accused or influence the concerned court qua any other accused or influence any proceedings pending before any judicial fora on the lis.
Sd/-
JUDGE rsh & kmv from para 4 to end ct:bck