Rajasthan High Court - Jaipur
Yashwant Singh vs State And Anr on 9 February, 2010
Author: K.S. Rathore
Bench: K.S. Rathore
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R (1) S.B. CRIMINAL MISC. PETITION NO. 146/2006 YASHWANT SINGH Vs. STATE OF RAJASTHAN & ANR. (2) S.B. CRIMINAL MISC. PETITION NO. 147/2006 YASHWANT SINGH Vs. STATE OF RAJASTHAN & ANR. (3) S.B. CRIMINAL MISC. PETITION NO. 230/2006 SMT. BHANU KUMARI Vs. STATE OF RAJASTHAN & ANR. (4) S.B. CRIMINAL MISC. PETITION NO. 231/2006 SMT. BHANU KUMARI Vs. STATE OF RAJASTHAN & ANR. & (5) S.B. CRIMINAL MISC. PETITION NO. 1847/2006 RAJESH SINGHAL & ANR. Vs. STATE OF RAJASTHAN & ANR. Date: 09/02/2010 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Suresh Sahni, ) Mr. R.M. Sharma ) Ms. Susan Mathew ) Mr. Abhinav Sharma & ) Mr. Hanuman Choudhary ),Advocates for petitioners. Mr.Javed Choudhary, Public Prosecutor for State.
Mr. K.K. Mehrishi, Sr. Advocate with Mr. Sanjay Mehrishi ) Mr. Devendra Raghav, ) Mr. Harsh Kulshreshtha ), Advocates for the complainant-respondent.
**** REPORTABLE S.B. Criminal Misc. Petition Nos. 146/2006 and 147/2006 have been preferred by petitioner Yashwant Singh for quashing of FIR Nos. 19/2006 and 20/2006 respectively, lodged by complainant-respondent Shri Jitender Singh, at Police Station Kotwali, Alwar for the offence under Sections 420, 467, 468 and 471 IPC.
2. Further, S.B. Criminal Misc. Petition Nos. 230/2006 and 231/2006 have been preferred by petitioner Smt. Bhanu Kumari for quashing of FIR Nos. 19/2006 and 20/2006 respectively, lodged by complainant-respondent Shri Jitender Singh, at Police Station Kotwali, Alwar for the offence under Sections 420, 467, 468 and 471 IPC.
3. Yet another misc. petition i.e. S.B. Criminal Misc. Petition No. 1847/2006 has been preferred by petitioners Rajesh Singhal and Banwari Lal Singhal for quashing of FIR No. 19/2006 lodged by complainant-respondent Shri Jitender Singh at Police Station Kotwali, Alwar for the offence under Sections 420, 467, 468 and 471 IPC.
4. Since all the aforesaid criminal misc. petitions have been preferred for seeking quashment of impugned FIR Nos. 19/2006 and 20/2006, registered by same complainant-respondent Shri Jitender Singh against the petitioners for the offence under Sections 420, 467, 468 and 471 IPC, therefore, all the petitions have been heard together and are being decided by this common order.
5. The facts of S.B. Criminal Misc. Petition No. 146/2006- Yashwant Singh Vs. State of Rajasthan & Anr., are taken as leading case.
6. Brief facts of the case are that petitioners and non-petitioner No.2 are descendants of the family of the erstwhile Maharaja of Alwar, State of Rajasthan. The petitioner is the son of Maharaja Sawai Tej Singh, who, at the time of filing the misc. petition, was alive and residing at Bungalow No.18, Aurangzeb Road, New Delhi. Complainant-respondent Shri Jitender Singh is the only son of Maharaj Kumar Pratap Singh, who died in the year 1976, and is grand son of Maharaja Sawai Tej Singh. The dispute between the other members of the family of Maharaja Sawai Tej Singh and complainant-respondent Shri Jitender Singh aggravated with passage of time which ultimately led to filing of a civil suit by Shri Jitender Singh against his own grand-father and other near relatives like uncle (father's younger brother), aunti (father's younger sister) and some other persons on 07.11.2005. Along with the suit, an application under Order 39 Rule 1 and 2 CPC was also filed by the complainant-respondent.
7. Learned counsel for the petitioner submits that petitioners Yashwant Singh and Smt. Bhanu Kumari are near relatives and they are descendants of common ancestor. It is further contended that the complainant-respondent alleged in the suit that the defendants hatched a conspiracy and in order to fulfill their object of wrongful gain the defendants have got a power of attorney executed on 30.09.2004 and yet another on 09.04.2005. It is further averred that subsequently on the basis of the aforesaid power of attorney, the defendant No.2 had executed an agreement to sell on 18.04.2005 with regard to a land bearing Khasra Nos. 942, 943 and 944. The defendant No.2 said to have got a receipt executed on 25.04.2005 of an amount of Rs. 10 lacs on the basis of the agreement to sell dated 18.04.2005.
8. It has further been averred in the suit that the proceedings under Ceiling Law were undertaken by the Sub Divisional Officer, Alwar, by which excess land was to be surrendered to the Government. It is stated that the land being excess of ceiling area which was to be surrendered to the Government had already been given to late Maharaj Kumar Pratap Singh by the family arrangement dated 20.07.1968, who became the owner of the same and was also in his possession and the petitioner Yashwant Singh is witness to the power of attorney dated 09.04.2005 and as such involvement and conspiracy of defendant Nos. 2 and 3 is established. The validity of the power of attorney dated 09.04.2005 was also challenged in the suit. It was further averred that Smt. Bhanu Kumari mainly lives with Maharaja Sawai Tej Singh and in order to fulfill her illegal objects, she hatched a conspiracy with other defendants and as such neither she looks after nor is providing medical treatment to Maharaja Sawai Tej Singh. It was also alleged that in conspiracy with other defendants she is getting forged documents prepared to fulfill illegal objects.
9. In the suit filed by the complainant-respondent Shri Jitendra Singh, it is further alleged that some persons had unsuccessfully tried to trespass over the property of Maharaja Sawai Tej Singh on 15.10.2005 and when the plaintiff and his fellow-men prevented them, they shown two power of attorney dated 30.09.2004 and 09.04.2005. It has also been stated in the suit by the plaintiff that he had lodged a First Information Report against the present petitioners.
10. It has further been stated that the civil suit was got registered on 08.11.2005 and arguments on the stay application were heard on the same day and on 10.11.2005, the District Judge, Alwar passed an order on the stay application with certain directions that the CMHO shall conduct medical examination of Maharaja Sawai Tej Singh by constituting a team of three senior specialist Doctors and the ex-ruler Maharaja Sawai Tej Singh be given proper treatment in any hospital or Nursing Home or elsewhere in view of his present health position. It was further ordered that the record of East West Medical Centre, New Delhi be called for and the applicant plaintiff was also directed to deposit Rs. 5,000/- before constitution of the Medical Board after the service of the summon to non-applicants No. 1,3, 4 and 5 so that the non-applicants have the knowledge about the claim made in the application and the matter was ordered to be listed on 13.12.2005.
11. Learned counsel for the petitioners submits that the impugned FIRs' have been lodged by the complainant because of extraneous consideration and to wreck private vengeance by the informant against the accused petitioners and also to harass and humiliate the petitioners, who are the members of erstwhile ruling family and hold high reputation in the society.
12. It is further submitted that when the complainant-respondent was unsuccessful in his object to make criminal trespass at the residence of the petitioners and their father for which he had made an attempt more than once and when the civil suit filed by him was also stayed by the Hon'ble Supreme Court, as a result of which the complainant-respondent could not succeed on that front, he has come out with a new strategy of lodging FIR at Police Station Kotwali, Alwar, from where he himself is a sitting Member of Legislative Assembly of Rajasthan and thus, the impugned FIRs' have been lodged against the petitioners just to harass and humiliate them by levelling false allegations.
13. Learned counsel for the petitioners also contended that the allegations made in the impugned FIRs' are of civil nature, for which a civil suit has been filed, but as the proceedings have been stayed by the Hon'ble Apex Court, the complainant-respondent has now invented new strategy and lodged FIRs' against the petitioners.
14. Further the allegation of conspiracy said to have been hatched by the petitioners and others and the allegation about incorrect documents have also been made in the report, as had been done in the suit pending at Alwar. It has been specifically stated in the report that agricultural land bearing Khasra Nos. 942, 943 and 944 have been illegally sold by some accused persons who are also one of the defendant in the suit. Similar to the averments made in the suit, it is alleged in the impugned FIR that the general power of attorney dated 09.04.2005 is a forged one.
15. Therefore, by way of aforesaid misc. petitions the petitioners have prayed to accept and allow these petitions and to quash and set aside the proceedings arising out of FIR Nos. 19/2006 and 20/2006 registered at Police Station Kotwali, Alwar and also seek directions to the effect that no harassment or humiliation on account of investigation/ interrogation by the police pursuant to the aforesaid FIRs' be perpetrated against the petitioners.
16. In support of his arguments, the learned counsel for the petitioners placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of V.R. Dalal & Ors. Vs. Yogendra Naranji Thakkar & Anr., reported in AIR 2008 SC 2793, wherein the Hon'ble Supreme Court while exercising power under Section 482 Cr.P.C., held that Quashing of Proceedings-Criminal complaint- Dispute between parties civil in nature- Court may not allow criminal proceedings to go on- But no law as such can be laid down as in a given case both proceedings would be maintainable.
17. He has also placed reliance on the judgments delivered by the Hon'ble Supreme Court in the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., reported in 2007 AIR SCW 6679 and in the case of M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. & Ors., reported in AIR 2006 SC 2780.
18. After referring the aforesaid judgments rendered by the Hon'ble Supreme Court, learned counsel for the petitioners submits that the controversy involved in these petitions is squarely covered by the observations made by the Hon'ble Supreme Court in the aforesaid cases.
19. Learned counsel further placed reliance on the judgment delivered by the Hon'ble Supreme Court in the case of Ram Biraji Devi And Another Vs. Umesh Kumar Singh And Another, reported in 2006 Acquittal Cases Reporter (2006) II, Page 23, wherein the Hon'ble Supreme Court in para Nos. 6 and 7, observed as under:-
6. On the one hand, the complainant himself has stated in the complaint that oral agreement to sell the plot took place in July 2002 and on the other hand, he has alleged that he started paying the consideration amount for the purchase of the plot between 15.7.2000 and 15.12.2002. The version of the complainant self-contradictory and, therefore, no prima-facie case is made out against the appellant involving them in the commission of the alleged offences. The learned Magistrate in his order has categorically stated that the perusal of the complaint would make it clear that there was dispute in respect of sale and purchase of land between the parties. In our view even if the allegations made in the complaint are accepted to be true and correct, the appellants cannot be said to have committed any offence of cheating or criminal breach of trust. Neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No criminal case is made out by the complainant against the appellants in his complaint and in the statements of the complainant and his witnesses recorded by the Magistrate before taking of the cognizance of the alleged offence.
7. The averments of the complaint and the statements of the complainant and his witnesses recorded by the Magistrate would amount to civil liability inter se the parties and no criminal liability can be attributed to the appellants on the basis of the material on record. In Trisuns Chemical Industry's case (supra), relied upon by the complainant, this Court held as under:-
Quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. Merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The provision incorporated in the agreement for referring the disputes to arbitration is not an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases.
20. Per contra, learned counsel appearing for the respondent submits that the petitioners are not able to show as to how FIRs' in question are false at its face value and also not able to demonstrate before the Court as to how offence under Sections 420, 467, 468 and 471 IPC is not made out against the petitioners. It is further contended that with an ulterior motive forged power of attorney has been prepared by the petitioners to dispose of the land belonging to Maharaja Sawai Tej Singh.
21. It is also submitted by the learned counsel for the respondent that the District Judge, Alwar considering the grievance of the petitioner, passed an order on the stay application directing the CMHO to conduct medical examination of Maharaja Sawai Tej Singh by constituting a team of three senior specialist doctors. It was also directed that record of East West Medical Centre, New Delhi be called and ex-ruler Maharaja Sawai Tej Singh may be given proper treatment in any hospital or Nursing Home or elsewhere looking to his present health condition. Further, the applicant/complainant-respondent No.2 was also directed to deposit Rs. 5,000/ before constitution of medical board after service of summon to the non-applicant Nos. 1,3,4 and 5 so that they have the knowledge about the claim made in the application.
22. Pursuant to the aforesaid directions given by the District Judge, Alwar on 10.11.2005, medical examination of Maharaja Sawai Tej Singh was conducted on 11.11.2005 from 12.45 p.m. to 01.45 p.m. by the three members Medical Board constituted of Dr. Pradeep Gupta, Sr. Specialist Medicine, Dr. J.S. Sharma, Jr. Specialist Psychiatry and Dr. Parvinder Singh, Jr. Specialist Medicine, in the presence of SHO, Tuglak Road, New Delhi at 18, Aurangzeb Road, New Delhi. At the time of medical examination, complainant-respondent Shri Jitendra Singh, petitioner Yashwant Singh and his grand daughter Sohani Kumari were also present. It was observed by the Medical Board that the room where Shri Tej Singh was bed-ridden, was poorly ventilated, unhygienic and unhealthy and toilet was not clean. As per the Medical Board, right handed old man unable to sit up at all, even unable to roll over due to spastic hemiplegia (paralysis) of left side of body with contractures (rigidity) of left side of body, in poor hygienic conditions, with long toenails on both feet, facial expressions inadequate, without emotional involvement during examination. As regard motor behaviour, left side spastic paralysis with contractures on left side of body, unable to walk or even sit and roll over in bed. Whole examination was done in left side lying down position, holding pen and tremulousness, resulting in illegible handwriting and signature. Further, he was slow, low-pitched voice, even after repeating questions several times he was unable to understand and reply correctly.
23. Having considered the medical history, physical and mental examination as well as records/ information available, the members of the Medical Board were of the opinion that Shri Tej Singh has been suffering from gross senile degeneration of the brain (i.e. dementia) and left sided spastic hemiplegia (i.e. paralysis). It was also observed by the Medical Board that his mental and physical abilities are grossly diminished, which seem to have taken place since and due to the paralytic stroke in 1999, for which he was admitted in the East-West Medical Centre, New Delhi. The Medical Board also opined that Shri Tej Singh was unable to think logically and act rationally, unable to understand his interests (good or bad) and was also unable to read. His writing is illegible, even his signatures. Ultimately, the Medical Board concluded that Shri Tej Singh has lost his mental and physical abilities to think, read, write and sign since he suffered the paralytic stroke in the year 1999 and recommended that patient is under poor hygienic conditions and is not being attended to and looked after properly, which is clear from the conditions of his room, surroundings and basic facilities and advised that he should be shifted to a Hospital/Nursing Home for immediate Medical attention and supervision.
24. The aforesaid medical examination report has been referred by the learned counsel for the respondent to show that late Maharaja Sawai Tej Singh was not in a fit mental state to think, read, write and sign and in such situation how the alleged power of attorney has been given by late Maharaja Sawai Tej Singh. Therefore, a suit was filed by complainant-respondent alleging therein that both the power of attorney are forged.
25. As per the respondent, since pursuant to the aforesaid power of attorney, the petitioners, with an ulterior motive, sold the land belonging to late Maharaja Sawai Tej Singh, therefore, the complainant-respondent was having no option other than to lodge FIR against the petitioners for the offence under Sections 420, 467, 468 and 471 IPC and the same cannot said to have false at its face value and this Court while exercising extraordinary power under Section 482 Cr.P.C., cannot quash and set aside the FIRs' in question.
26. In support of his submissions, the learned counsel for the respondent placed reliance on the judgment delivered by the Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. Bajjoori Kanthaiah & Anr., reported in 2009(3) RLW 2098(SC), wherein in para Nos. 8 and 9, the Hon'ble Supreme Court observed as under:-
8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: The Janata Dal etc. vs. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran vs. State of Bihar and another (AIR 1964 SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of a secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.(See: .......)
9. In all these cases there was either statements of witnesses or seizure of black jaggery and olum materials being used for manufacturing illicit distilled liquor which factors cannot be said to be without relevance. Whether the material already in existence or to be collected during investigation would be sufficient for holding the concerned accused persons guilty has to be considered at the time of trial. At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if there are materials showing possibility about the commission of the crime as against certainty. That being so, the interference at the threshold with the F.I.R. is to be in very exceptional circumstances as held in R.P. Kapoor and Bhajan Lal cases(supra).
27. Similar view has been taken by the Hon'ble Supreme Court in the case of Pratibha Vs. Rameshwari Devi And Others, reported in (2007) 12 SCC 369, wherein in para No. 12 the Hon'ble Supreme Court held as under:-
12. From the principles laid down in the abovementioned decisions, it is clear that the Court is entitled to exercise its inherent jurisdiction for quashing a criminal proceeding or an FIR when the allegations made in the same do not disclose the commission of an offence and that it depends upon the facts and circumstances of each particular case. We also feel it just and proper to refer to a leading decision of this Court in State of Haryana v. Bhajan Lal (1992 Supp[1] SCC 335) in which this Court pointed out certain categories of cases by way of illustrations wherein the inherent power under Section 482 of the Code can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The same are as follows: (SCC pp. 378-79, para 102) (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 engrated 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 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.
28. In response to the submissions made on behalf of the petitioners that the dispute between the parties is of civil nature, the learned counsel for the respondents placed reliance on the judgment delivered by the Hon'ble Supreme Court in T. Vengama Naidu Vs. T. Dora Swamy Naidu And Others, (2007) 12 SCC 93, wherein the Hon'ble Supreme Court held that it is settled law that an FIR and the consequent investigation cannot be quashed unless there is no offence spelt out from the same- FIR is to be taken on its face value for adjudging the same- No question of considering the merits of the allegations contained in FIR at that stage or testing the veracity of allegations would arise.
29. It has been further observed by the Hon'ble Supreme Court in the aforesaid case that High Court at the stage of investigation could not have examined the nature of transaction or whether any offence was actually committed by the accused persons or not- Only enquiry that could have been undertaken was to see as to whether the complaint or FIR did contain allegations of any offence- High Court erred in quashing the FIR.
30. Reliance has also been placed by the learned counsel for the respondent on the judgment delivered by the Hon'ble Supreme Court in the case of Iqbal Singh Marwah And Another Vs. Meenakshi Marwah And Another, reported in (2005) 4 SCC 370, wherein the Hon'ble Supreme Court held that civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given- Findings recorded in one proceeding may not be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.
31. Yet another judgment rendered by the Hon'ble Supreme Court in the case of State of Punjab through Secretary, Home Vs. Subhash Kumar And Others, reported in (2004) 13 SCC 437, has been relied upon by the learned counsel for the respondent, wherein the Hon'ble Supreme Court was of the view that Quashing of FIR by High Court by entering into the factual arena, held, was wholly impermissible- High Court acted more as an investigating agency at a stage when the FIR was under investigation- Hence, High Court's order set aside.
32. I have given my thoughtful consideration to the submissions made on behalf of the respective parties and carefully gone through the contents of the FIRs' under challenge in the present misc. petitions.
33. I have also thoroughly scanned the material available on the record and perused the judgments referred by the respective parties.
34. All the present misc. petitions have been filed by the petitioners for quashing the FIR Nos. 19/2006 and 20/2006 registered at Police Station Kotwali, Alwar for the offence under Sections 420, 467, 468 and 471 IPC. Much emphasize has been given by the petitioners that the aforesaid FIRs' have been lodged by the complainant-respondent No.2 with an ulterior and malafide intention just to harass and humiliate the petitioners.
35. The judgment of the Hon'ble Supreme Court delivered in the case of V.R. Dalal & Ors.(supra) has been relied upon by the petitioner on the ground that since civil suit is pending between the parties, the criminal proceedings may not be allowed to continue as the Hon'ble Supreme Court in the aforesaid case has clearly indicated that the dispute between the parties may be of civil nature, the Court may not allow criminal proceedings to go on, but the Hon'ble Supreme Court has not laid down any law as in the given case both the proceedings would be maintainable.
36. In the case of Inder Mohan Goswami & Anr. (supra), the Hon'ble Supreme Court has observed as under:-
Dispute about cancellation of agreement to sell property- Is civil dispute- Institution of criminal proceedings under Ss. 420, 120-B, 467, IPC against vendor- An abuse of process of Court- 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 accused.
37. Further in the case of M/s Indian Oil Corporation (supra), the Hon'ble Supreme Court has observed in the following terms:-
A growing tendency in business circles to convert purely civil disputes into criminal cases is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lenders/ creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
38. In the light of the judgments referred by the learned counsel for the petitioners as well as the respondent and in view of the principles laid down by the Hon'ble Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others, AIR 1992 SC 604, the facts and circumstances of the present cases require thorough consideration and examination.
39. By bare perusal of the FIR, it appears that in all the cases, the complainant-respondent alleged against the petitioners that they have prepared forged power of attorney and agreement to sell and with an ulterior motive and to deprive the complainant-respondent from his legitimate rights. Further power of attorney said to have been executed by late Maharaja Sawai Tej Singh, whereas as per the report of medical examination conducted by the Medical Board constituting of three doctors, Maharaja Sawai Tej Singh lost his mental and physical abilities to think, read, write and sign since he suffered the paralytic stroke in the year 1999.
40. As the learned counsel for the petitioners has relied upon the judgment of the Hon'ble Supreme Court delivered in the case of V.R. Dalal & Ors. Vs. Yogendra Naranji Thakkar & Anr.(supra), wherein in para Nos. 12 and 14 the Hon'ble Supreme Court observed as under:-
12. It may be true that in the event the court finds that the dispute between the parties is civil in nature, it may not allow the criminal proceedings to go on. But, no law, in our opinion, as such can be laid down as in a given case both civil suit and criminal complaint would be maintainable although the cause of action for both the proceedings is the same.
14. We may notice that as regards commission of an offence in terms of Section 405 of Indian Penal Code, this Court in Indian Oil Corpn. v. NEPC India Ltd. and other [(2006) 6 SCC 736] held that where the first ingredient of criminal breach of trust, that is, entrustment is missing, the same would not constitute a criminal breach of trust.
As regards essential ingredients of the offence of cheating, it was stated:
(i) deception of a person either by making a false or misleading representation or by other action or omission, (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person to do or omit to do anything which he would not do or omit if he were 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.
41. Applying the ratio decided by the Hon'ble Supreme Court in the said case of V.R. Dalal(supra), it appears that the alleged FIRs' contain all ingredients of cheating and, therefore, the observations made by the Hon'ble Supreme Court in para 12 of the aforesaid judgment are not applicable to the instant case.
42. Further in the case of Inder Mohan Goswami & Anr.(supra), which has been referred by the learned counsel for the petitioners, the Hon'ble Supreme Court has observed that 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 accused.
43. In the light of the principles laid down by the Hon'ble Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others (supra), it is for the petitioners to make out their case that under which category their case falls. While laying down seven principles in the aforesaid case of Bhajan Lal(supra), the Hon'ble Supreme Court has clearly observed that power of quashing the FIR should be exercised sparingly and that too in the rarest of rare cases.
44. In the instant cases, the petitioners are utterly failed to make out their case as to how the FIRs' in question lodged against them are false at its face value. The impugned FIRs' cannot be quashed on the solitary ground that civil suit is pending between the parties and in such eventuality, criminal proceeding may not be allowed to continue, as the Hon'ble Supreme Court in the case of State of Andhra Pradesh Vs. Bajjoori Kanthaiah & Anr.(supra), has held that the complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.
45. Further the Hon'ble Supreme Court in the case of Pratibha Vs. Rameshwari Devi And Others (supra), while reiterating the principles laid down in the case of Bhajan Lal (supra), held that High Court is entitled to exercise its inherent jurisdiction for quashing a criminal proceeding/FIR when allegations made in the same do not disclose commission of an offence- Also, it depends upon facts and circumstances of each particular case.
46. Applying the ratio decided by the Hon'ble Supreme Court, in the instant case it appears that the allegations made in the FIR disclose commission of an offence as the complainant-respondent has alleged that mental and physical state of Maharaja Sawai Tej Singh was not fit so as to execute power of attorney and the Medical Board has also opined that Maharaja Sawai Tej Singh lost his mental and physical abilities to think, read, write and sign since he suffered the paralytic stroke in the year 1999.
47. Learned counsel appearing on behalf of the respective parties relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Iqbal Singh Marwah And Another (supra), wherein the Hon'ble Supreme Court held that civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. It has been further observed that findings recorded in one proceeding may not be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.
48. Thus, the submission of the learned counsel for the petitioner that as the civil suit is pending between the parties, the FIRs' in question deserves to be quashed and set-aside, does not sustain in the light of the judgment delivered by the Hon'ble Supreme Court in the case of Iqbal Singh Marwah And Another (supra).
49. Upon careful perusal of the contents of the FIR which are under challenge in the present misc. petitions and the medical examination report of Maharaja Sawai Tej Singh given by the Medical Board, the allegations levelled against the petitioners that forged power of attorney has been prepared by them, can only be proved and established after completion of the investigation which is still pending. Therefore, in the facts and circumstances of the present case, it cannot be said that that FIRs' in question are false at its face value.
50. The instant cases are thoroughly examined on the basis of the seven principles laid down by the Hon'ble Supreme Court in the case of Bhajan Lal(supra) and after carefully going through the each and every aspect of the matter and the material available on the record, the allegations made in the FIR, at its face value, prima-facie, constitute offence under Sections 420, 467, 468 and 471 IPC against the petitioners and the allegations disclose cognizance offence justifying investigation.
51. In the facts and circumstances of the case as mentioned herein above and in view of the ratio decided by the Hon'ble Supreme Court in the case of Bhajan Lal(supra) that extraordinary powers should be exercised sparingly and that too in the rarest of rare cases, this Court while exercising its extraordinary powers under Section 482 Cr.P.C., do not think that the instant cases are rarest of rare cases which require any interference by this Court and the impugned FIRs' cannot said to be false at its face value, as observed herein above.
52. In the result, all the criminal misc. petitions fail being devoid of merit and the same are hereby dismissed with no order as to costs.
53. The stay applications also stand dismissed.
(K.S. RATHORE),J.
/KKC