Karnataka High Court
Sri Shivanaiah vs State Of Karnataka on 30 May, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
CRL.P No. 424 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 424 OF 2021
BETWEEN:
1. SRI SHIVANAIAH
S/O LATE GUTHALEGOWDA,
AGED ABOUT 68 YEARS,
R/AT NO.15, 'VINAYAKA KRUPA'
MUNISANJEEVAPPA LAYOUT,
JARAGANAHALLI
J.P.NAGAR 6TH STAGE
BENGALURU - 560 078.
2. SMT. NAGARATHNA
W/O SHIVANAIAH
AGED ABOUT 60 YEARS,
R/AT NO.15, 'VINAYAKA KRUPA'
Digitally signed MUNISANJEEVAPPA LAYOUT,
by PADMAVATHI
BK JARAGANAHALLI
Location: HIGH J.P.NAGAR 6TH STAGE
COURT OF BENGALURU - 560 078.
KARNATAKA
3. SMT. USHA S
W/O NAVEEN B.A.,
AGED ABOUT 33 YEARS
R/AT NO.14, SRINIVASA ROAD
S.D.JAYARAM LAYOUT
BANNUR ROAD
RING ROAD JUNCTION
NEAR DEVEGOWDA CIRCLE
-2-
CRL.P No. 424 of 2021
MYSURU - 570 029.
4. SMT. PUSHPA S.,
W/O SRIKANTH
AGED ABOUT 28 YEARS
R/AT NO.3/1, 2ND 'A' MAIN
'HANUMA', HEMAVATHI ROAD
MARUTHI NAGAR, NAGARABHAVI
BENGALURU - 560 072.
...PETITIONERS
(BY SRI P.PRASANNA KUMAR, ADVOCATE FOR
SRI KUMAR J.C., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER
PUTTENAHALLI POLICE STATION
BENGALURU - 560 076.
2. SRI EEREGOWDA
S/O LATE GUTTALEGOWDA
AGED ABOUT 73 YEARS,
R/AT NO.26, 1ST CROSS,
JNANAKSHI LAYOUT
R.R.NAGAR
BENGALURU - 560 098.
...RESPONDENTS
(BY SRI MAHESH SHETTY, HCGP FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.4428/2020 ON THE FILE OF XXX ADDL.C.M.M.,
BENGALURU FOR THE ALLEGED OFFENCES P/U/S 419, 420,
465, 468, 471, 506 AND 120(B) R/W 34 OF IPC AND ALL
FURTHER PROCEEDINGS PURSUANT THEREON.
-3-
CRL.P No. 424 of 2021
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question the proceedings in C.C.No.4428 of 2020 registered for offences punishable under Sections 419, 420, 465, 468, 471, 506, 120- and Section 34 of the IPC pending before the XXX Additional Chief Metropolitan Magistrate, Bengaluru.
2. Heard the learned counsel Sri P. Prasanna Kumar appearing for the learned counsel Sri J.C.Kumar for petitioners and the learned High Court Government Pleader for respondent No.1. The 2nd respondent/complainant is no more.
3. The facts as projected by the prosecution are as follows:
One Basavaraju, the owner of the property as described in the petition executes an unregistered General Power of Attorney in favour of the son of the complainant agreeing to sell site Nos.19 and 20, in Khata No.5/2 of Yelachenahalli village, Uttarahalli Hobli, Bengaluru South Taluk on 30.05.1996.
Therefore, the right of the complainant flows from the said agreement to sell said to have been executed on 30.05.1996.-4- CRL.P No. 424 of 2021
The owner of the property of site Nos.30 and 31 one Huchaiah again executes an agreement to sell in favour of the second son of the complainant. Even this remained an agreement to sell.
4. After about 10 years of the execution of the said documents, one Basavaraju, owner of site Nos.19 and 20 executes registered sale deed in favour of petitioner No.3 and the owner of site Nos.30 and 31 executes sale deed in favour of the 4th petitioner both on 29.12.2006. After about 10 years of execution of the aforesaid sale deeds in favour of petitioners 3 and 4, a suit comes to be instituted by the complainant/ 2nd respondent, in O.S.No.1879 of 2016 against all the petitioners herein including 3 others seeking partition and possession of various joint family properties including the properties that had been sold or the subject matter of sale dated 29.12.2006. The aforesaid proceedings would indicate that the petitioners and the complainant are members of the same family. The civil suit so instituted by the complainant is pending adjudication.
5. During the pendency of the civil suit, the complainant registers a complaint which becomes a crime in Crime No.387 of 2017 for the afore-quoted offences. The police, after investigation, file a charge sheet against the petitioners and -5- CRL.P No. 424 of 2021 others and the matter is now pending as C.C.No.4428 of 2020.
Filing of the charge sheet is what drives the petitioners to this Court in the subject petition.
6. Learned counsel Sri P.Prasanna Kumar would take this Court through the documents appended to the petition seeking to demonstrate that a proceeding which is seemingly civil in nature is sought to be given a colour of crime. The counsel would point out that the averments in the plaint being in favour of the petitioners and the complaint so registered is contrary as it is against the petitioners. Therefore, he would submit that the very registration of crime suffers from want of bonafides.
7. Learned High Court Government Pleader would seek to refute the submissions to contend that the petitioners are alleged to have committed forgery of certain documents and therefore, the civil suit is filed. Pendency of civil suit in the teeth of allegation of forgery would not be that the complaint is not maintainable or could be quashed. They two operate in different circumstances and therefore, seeks dismissal of the petition.
-6- CRL.P No. 424 of 20218. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. They lie in a narrow compass. The complainant has, in exercise of his right over the property, instituted a civil suit in O.S.No.1879 of 2016 seeking following reliefs:
".... .... ....
WHEREFORE, the plaintiffs pray that this Hon'ble Court be pleased to pass a Judgment and Decree:
(a) For effecting partition by metes and bound of the suit schedule properties among the plaintiff and defendant No.1 and divide the properties equally by dividing equal one half share in the suit schedule properties among plaintiff and defendant No.1 and put the plaintiff into separate and exclusive possession over the half share in respect of the suit schedule A and B properties.
(b) Grant an order of permanent injunction restraining the defendants, their men, agents or anybody claiming under them, not to interfere with the peaceful possession and enjoyment of the partitioned properties in any manner."-7- CRL.P No. 424 of 2021
What is sought is partition of schedule 'A' and 'B' properties insofar as it is described in the schedule. The averment made in the civil suit assumes certain significance.
Paragraph 11 and 12 of the plaint reads as follows:
"11. The plaintiff further submits that since the proper registered sale deed was not registered in the name of Smt. Jayalakshmamma, on 3-11- 2007 the aforesaid land owners were called upon to execute the registered sale deed in pursuance of the said Agreement of Sale, GPA and affidavit in the name of the Defendant No. 5 herein on behalf of the joint family members. Thus, this itself shows that the plaintiff and the Defendant No. 1 were joint family members. The said Smt. Jayalakshmamma also did not object to the same as the same was done for the betterment the joint family members.
12. The Plaintiff submits that after the purchase of the aforesaid various properties, statutory entries in respect of the aforesaid properties were also transferred in the name of holder of the property for the sake of convenience. But however the said properties were treated and considered as Joint Family Properties since all the members of the joint family have been and are in jointly and collectively enjoying the said properties and they are all enjoying joint possession over the schedule-B properties. The acquisition of the said properties was for and on behalf of the Joint Family."
(Emphasis added) The civil suit so filed is pending adjudication before the concerned Court. Pendency of the civil suit and no order being passed therein leads the complainant to register a crime -8- CRL.P No. 424 of 2021 against the petitioners on 28.10.2017. The complaint becomes a crime in Crime No.387 of 2017 for the aforesaid offences.
10. In the complaint, the 2nd respondent takes a different stand altogether concerning forgery of documents or otherwise which is not the stand in the plaint as quoted supra. Even otherwise, the complainant rightly having chosen the jurisdiction of the civil Court to agitate his rights with regard to partition of the property amongst the brothers, ought not have set the criminal law in motion, in a matter that is purely civil in nature, as it depicts it to be civil in nature, on the face of the complaint so registered and the complaint averments so extracted supra.
11. The police, after investigation have filed a charge sheet. The summary of the charge sheet reads as follows:
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- 10 -CRL.P No. 424 of 2021
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If the complaint, summary of the charge sheet and the averments in the complaint are read in tandem, what would unmistakably emerge is, the complainant is seeking to dress a civil proceeding with the colour of crime which is clearly impermissible in law, notwithstanding the fact that the allegations against the petitioners are also one of forgery or creation of documents. In the circumstances, reference being made to the judgment of the Apex Court in the case of
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CRL.P No. 424 of 2021DEEPAK GABA V. STATE OF UTTAR PRADESH1 would assume significance. The Apex Court has held as follows:
".... .... ....
14. Section 406IPC [ "406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."] prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405IPC are satisfied. For Section 406IPC to get attracted, there must be criminal breach of trust in terms of Section 405IPC. [ "405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".***Illustrations***(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer 1 (2023)3 SCC 423
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CRL.P No. 424 of 2021loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust."(Explanations 1 and 2 and Illustrations
(a) and (e) to Section 405IPC are excluded, as they are irrelevant.)]
15. For Section 405IPC to be attracted, the following have to be established:
(a) the accused was entrusted with property, or entrusted with dominion over property;
(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646]
17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre- summoning evidence is also lacking and suffers on this
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CRL.P No. 424 of 2021account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.
18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201]
19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to
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CRL.P No. 424 of 2021Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or 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. In the present case, the ingredients to constitute an offence under Section 420 read with Section 415IPC are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415IPC. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent 2 complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415IPC are not satisfied, the offence under Section 420IPC is not made out.
21. Section 471IPC [ "471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."] is also not attracted. This Section is applicable when a person fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reasons to believe to be a forged document or electronic record. This Court in Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case,
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CRL.P No. 424 of 2021in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , has elucidated that the condition precedent of an offence under Section 471IPC is forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 471IPC, it has to be proven that the document was "forged" in terms of Section 470 [ "470. Forged document.--A false document [or electronic record] made wholly or in part by forgery is designated "a forged document or electronic record"."] , and "false" in terms of Section 464IPC [ "464. Making a false document.--A person is said to make a false document or false electronic record--First.--Who dishonestly or fraudulently--(a) makes, signs, seals or executes a document or part of a document;(b) makes or transmits any electronic record or part of any electronic record;(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,with the intention of causing it to be believed that such document or part of a document, electronic record or *[electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or* Substituted for "digital signature" by Act 10 of 2009, Section 51(e) (w.e.f. 27-10-2009)Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; orThirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the
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CRL.P No. 424 of 2021document or electronic record or the nature of the alteration."] .
22. Section 470 lays down that a document is "forged" if there is:
(i) fraudulent or dishonest use of a document as genuine; and
(ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one.
Section 470 defines a "forged document"
as a false document made by forgery.
23. As per Section 464IPC, a person is said to have made a "false document":
(i) if he has made or executed a document claiming to be someone else or authorised by someone else;
(ii) if he has altered or tampered a
document; or
(iii) if he has obtained a document by
practising deception, or from a person not in control of his senses.
24. Unless the document is false and forged in terms of Sections 464 and 470IPC respectively, the requirement of Section 471IPC would not be met.
25. In the counter-affidavit filed by Respondent 2 complainant, it is submitted that a few bills were faked/forged, as the goods were not ordered. Reference is made to balance of Rs 79,752 shown on 30-3-2013, which was objected to and thereupon as per the complaint itself the demand/bill was withdrawn. This would not make the bill a forged document or false document, in terms of Sections 470 and 464IPC. The complaint was made in the year 2017, four years after the bill/claim had been withdrawn, reflecting no
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CRL.P No. 424 of 2021criminal intent. The bill was not fake or forged, and at best it could be stated that it was wrongly raised. Moreover, the pre-summoning evidence is silent with regard to this bill and mens rea on the part of the accused is not shown and established. Same would be the position with regard to the bill/invoice of Rs 53,215 which was as per the complaint, sent directly to Manav Rachna International at Faridabad. The bill/invoice is not doubted as "forged" or "false" within the meaning of Sections 470 and 464IPC. No doubt, Adhunik Colour Solutions is mentioned as the buyer, and Manav Rachna International as the consignee, albeit the invoice was issued by JIPL. Pre-summoning evidence does not help and make out a case predicated on this bill/invoice. In the counter- affidavit filed before us, it is alleged that since this bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had Respondent 2 complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent 2 complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence under Section 471IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre-summoning evidence.
26. For completeness, we must record that the appellants have placed on record the dealership agreement dated 11-4-2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded Respondent 2 complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, Respondent 2 complainant would not be liable, had Manav Rachna International failed to pay. Non-payment is also not alleged in the complaint or the pre-summoning evidence. Reliance on objections vide emails dated 4-7- 2014 and 21-7-2014 are of no avail, as they are for the period prior to 31-7-2014, when the bill/invoice was raised.
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CRL.P No. 424 of 202127. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by Respondent 2 complainant primarily pertains to settlement of accounts. The allegations are:
(i) goods supplied by JIPL were not as per the requirements and demands of Respondent 2 complainant,
(ii) goods supplied were different from the order placed, and
(iii) goods lying with, and returned by Respondent 2 complainant have not been accounted for.
These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405IPC, or for that matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by Respondent 2 complainant is the demand of Rs 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of "insufficient funds".
28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the
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CRL.P No. 424 of 2021allegations pertain to alleged breach of contractual obligations. Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] , as it refers to earlier case laws in copious detail.
29. In Thermax [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] , it was pointed out that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion.
30. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinise the evidence brought on record. He/She may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 :
(2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713;
Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400]; and Mehmood Ul Rehman v. Khazir
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CRL.P No. 424 of 2021Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124.]
31. Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times.
32. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act 25 of 2005, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. [Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479; Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528 : (2017) 2 SCC (Cri) 192; and Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713.] In the present case, the said exercise has not been undertaken.
33. The order sheet of the trial court enclosed with the appeal reveals that notwithstanding that the summoning order was limited to unnamed Manager and Chief Manager of JIPL, the Additional Chief Judicial Magistrate had deemed it appropriate to issue non- bailable warrant. The non-bailable warrant was not issued in the name of any person but by designation against the
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CRL.P No. 424 of 2021Chief Manager JIPL, Andheri East, Mumbai. This was also one of the reasons that had prompted the appellants to the file the petition under Section 482 of the Code.
34. We must also observe that the High Court, while dismissing the petition filed under Section 482 of the Code, failed to take due notice that criminal proceedings should not be allowed to be initiated when it is manifest that these proceedings have been initiated with ulterior motive of wreaking vengeance and with a view to spite the opposite side due to private or personal grudge. [Birla Corpn. Ltd. [Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : (2020) 2 SCC (Cri) 828 : (2020) 2 SCC (Civ) 713]; Mehmood Ul Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124]; R.P. Kapur v. State of Punjab, AIR 1960 SC 866; and State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426.] Allegations in the complaint and the pre-summoning evidence on record, when taken on the face value and accepted in entirety, do not constitute the offence alleged. The inherent powers of the court can and should be exercised in such circumstances. When the allegations in the complaint are so absurd or inherently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient wrong for proceeding against the accused, summons should not be issued."
(Emphasis Supplied) Prior to the judgment of the Apex Court in the case of DEEPAK GABA, the Apex Court, in the case of RANDHEER SINGH v.
STATE OF UTTAR PRADESH2 considering the issue as to further proceedings against the accused in a seemingly civil 2 (2021)14 SCC 626
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CRL.P No. 424 of 2021dispute should be permitted to continue or otherwise, 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
(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
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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 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:
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'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 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).
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CRL.P No. 424 of 2021(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 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."
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CRL.P No. 424 of 202128. 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 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
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CRL.P No. 424 of 2021complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal 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 not so deceived, and which act or omission causes or is likely to
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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 conviction are bleak and, therefore, no useful purpose is likely to
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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
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CRL.P No. 424 of 2021constitutional importance and should be jealously preserved.
***
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
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CRL.P No. 424 of 2021Respondent 1, in respect of the offences punishable under Sections 406, 409 and 420IPC, also stands quashed."
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
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CRL.P No. 424 of 2021Batra [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 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."
12. In the light of the law laid down by the Apex Court in the aforesaid judgments, which would become applicable on all fours to the facts of the case at hand, if further proceedings are permitted to continue, it would be case on abuse of the process of law and would degenerate into harassment to the petitioners. Therefore, I deem it appropriate to exercise the jurisdiction of this Court under Section 482 of the Cr.P.C. and obliterate the proceedings against the petitioners.
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CRL.P No. 424 of 202113. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) Impugned proceedings in C.C.No.4428 of 2020 pending on the file of XXX Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioners.
Sd/-
JUDGE BKP List No.: 1 Sl No.: 74