Jammu & Kashmir High Court
Ashok Vijay Gupta vs Ut Of J&K And Ors on 29 November, 2021
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
1
S. No. 77
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CRM (M) No. 89/2021
CrlM No. 296/2021
(Through Video Conferencing)
Reserved on: 29.09.2021
Date of Pronouncement: 29.11.2021
Ashok Vijay Gupta
...Petitioner(s)
Through: Mr. Sunil Sethi, Sr. Adv. with
Ms. Rudra Sharma, Advocate
Vs
UT of J&K and Ors.
...Respondent(s)
Through: Mr. Ravinder Gupta, AAG with
Ms. Pallvi Sharma, Adv.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge
JUDGMENT
1. Inherent jurisdiction of this Court is being invoked by the petitioner in the instant petition seeking quashment of FIR No. 06/2021 dated 8th February, 2021 registered with Police Station Crime Branch, Jammu.
2. The facts under the shade and cover of which the instant petition has been filed by the petitioner are enumerated hereunder: -
• According to the petitioner, on 10th May, 1992, one Himnishwar Gupta S/o Late Rao Bahadur Brindaban executed a will-last testament appointing the petitioner as its executor. The said Himnishwar Gupta is stated to have passed away on 01-06-1992.
• It is being stated that the will provided for creating of a trust authorizing the selling of the assets of the trust with a rider that the proceeds received there from be not utilized and be deposited in a bank account and that the interest accrued thereupon can be utilized.
• It is being stated that the petitioner in exercise of his powers and being executor of the will of the testator, executed a sale deed in respect of a property of the trust and deposited the 2 consideration of the same in the bank account of the trust in the year 2006, wherein the same is lying as on date. • It is being stated that the said sale deed after being registered came to be challenged before a Civil Court by one of the tenants who claimed title over the said property. • It is being stated that the trust owns a building situated at Gurdwara Sunder Singh Road, Jammu and that the said property was sealed by Deputy Commissioner, Jammu in the year 2005 and that a reference was made to District Judge, Jammu for declaring the said property as a government property since the owner of the said property had died without leaving any heir. The said reference is stated to have been rejected by the District Judge vide order dated 17 th September, 2005 upon production of the will by the petitioner. • It is being stated that for achieving the goals defined in the will, the petitioner sold a part of land situated at Bishnah in terms of sale deed dated 08-12-2005 and the same became subject matter of a civil suit whereafter the petitioner decided not to sell any property of the trust till the disputes are settled. • It is being stated that the petitioner surprisingly received a questionnaire from respondent No. 2dated 27th June, 2018 referring therein holding of an inquiry in respect of the will deed executed by the above named deceased Himnishwar Gupta. The questionnaire is stated to have been containing baseless allegations against the petitioner. • It is being stated that the said questionnaire came to be responded to by the petitioner by submitting a detailed reply on 30th July, 2018 along with the copy of will deed, bank account, order of the District Judge, Jammu dated 17-09- 2005, answering all the questions of the questionnaire and denying allegations leveled therein.
• It is being stated that the said inquiry contemplated in the matter came to be closed by the respondent No. 2 as no case was made out against the petitioner.3
• It is being stated that after two years of closure of the enquiry undertaken by the Crime Branch, the respondents lodged the FIR in question against the petitioner which is being impugned in the instant petition.
3. The impugned FIR is being challenged on the following grounds: -
i. That the impugned FIR glistered by the Respondent No. 3 against the petitioner is totally illegal, arbitrary contrary to the provisions of law, therefore, the same deserves to be quashed.
ii. That from the allegations as have been alleged against the petitioner, in the impugned FIR, no offence much less the offences punishable under Section 420, 406 RPC and Section 5 (2) of Prevention of Corruption is made out against the petitioner. The petitioner has been wrongly and falsely implicated in the FIR on the basis of the pressure of the Respondent No. 4. On this ground also the impugned FIR deserves to be quashed.
iii. That the Respondent No. 1 who closed the preliminary inquiry on its own without any direction from a competent court setting aside the order dated 15-12-2018 directed the respondent No. 2 to reinitiate the inquiry and impugned FIR was lodged. The respondent No.1 had no authority to direct the respondent No. 2 to reinvestigate and conduct Preliminary Inquiry once it was closed on the issue of jurisdiction and competence to deal with such a complaint, hence the impugned FIR deserves to be quashed.
iv. That the Himnishwar Trust is a private trust and the respondent No. 4 is neither part of the Trust nor any person from whose property or donation the said trust was created. It is created from the assets of the person who decided not to let the assets transferred to the father of the complainant. The complainant is nothing but an envious relative of Himnishwar Gupta and the acts of the petitioner as an executor of the will can be questioned if any wrong doing is done, only by the members of the trust and not by the complainant. The Private respondent is not a contributor to the trust hence he doesn't even have a locus to file the complainant and levy baseless and false allegations against the petitioner. Hence the impugned FIR is bad in the eyes of law and deserves to be quashed.
v. That the petitioner has sold a piece of land by a Sale Deed which he executed in capacity as a Executor (A person appointed by a testator to carry out the directions and requests in his will, and to dispose of the property according to his testamentary provisions after his decease......As per Black's Law Dictionary) and deposited the proceeds of the sale deed in the bank account of the trust and not even a single penny has been withdrawn from the account and the same is known to the trustees, hence the trustees had not problem with the functioning of the trust, as said before, the Private respondent who was deprived of any inheritance due to his father's strained relationship with the Executor of the will has filed the present complaint out of vengeance, hence the FIR deserves to be quashed. vi. That offence under Section 415 is not made out in the complaint since the complaint or the impugned FIR nowhere reflects that the respondent No. 4 or the person to whom the land was sold have been deceived, he has raised objections to the working of the trust and the 4 petitioner and for the same lodging an FIR or filing a complaint full of lie is no remedy. It's a Civil dispute and the help of the official respondents has been sort to hoodwink the process of law and settle scores with the petitioner, hence the impugned FIR is bad in the eyes of law.
vii. That the impugned FIR is an abuse of process of law since the complaint is filed after 13 years of the execution of the Sale Deed and its registration, by a person who is neither a party to the sale deed nor is a part of the trust. Hence the impugned FIR deserves to be set aside. viii. That the Crime Branch has been designated as a Police Station by the State Government by virtue of a notification SRO 133 of 1991 dated 02-04-1991 read with SRO 202 of 1999 dated 03-06-1999 and notification SRO 204 of 2009 dated 27-07-2009 with jurisdiction and for purpose of registration and investigation of offences indicated in Annexure appended to SRO 202 of 1999 dated 03-06-1999.
In the instant case alleged against the petitioner by the respondent No. 4 does not in any manner fall in any of the offences notified by the Government over which the Crime Branch has the jurisdiction to register the case and investigate the same. Hence the impugned FIR deserves to be quashed to the extent of the petitioners.
Copies of the SRO 133 of 1991 Dt. 02-04-1991, SRO 202 of 1999 Dt. 03-06-1999 and SRO 204 of 2009 Dt. 27-07-2009 are enclosed herewith and marked as Annexure-X. ix. That the property sold vide Sale Deed dated 08-2-2005 has been challenged by the tenant of the property by means of a Civil Suit and the same is being contested by the petitioner and is pending disposal before the Learned Railway Magistrate at Jammu. The issue with regard to the authority to Sell and the title of the Land is still pending before the competent court and is being tried, the present FIR is an abuse of the process of law and has been lodged in Violation to the principles laid down in State of Haryana vs. Bhajan Lal, the Hon'ble Apex Court clearly stated that, where the Criminal Proceeding should be quashed and one of the grounds laid down by Hon'ble Apex Court is "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".
The issue is civil in nature and is already before a court of competent jurisdiction and the present FIR is lodged with an intention to abuse the process of law and put pressure upon the Petitioner who is contesting the civil suit.
x. That otherwise also a plain reading of the entire impugned FIR would show that the petitioner cannot be held guilty of any acts of omission and commission of any offence and the same is beyond the scope of authority to investigate of the Respondents, therefore, the impugned FIR deserves to be set aside by this Hon'ble Court.
4. Respondent No. 1 to 3 have filed objections to the petition wherein inter alia, it is being contended that the petitioner is involved in serious and grave offences as he has dishonestly misappropriated movable and immovable property left behind by Shri Himneshwar Gupta because of the fact that the petitioner 5 had been nominated as one of the executors of the will. It is being further contended in the objections that the petitioner dishonestly misused/disposed of property of the trust in violation of tenants of will and that on the basis of a verification conducted vide PV No. 228/2018, the allegations levelled by Shri Hindu Bhushan Gupta cognizable prima facie case had been constituted against the petitioner and the petitioner in the year 2000, being one executor of the trust hatched a criminal conspiracy in connivance with revenue officers/officials and others and got property of the trust at Bishnah mutated in his name and sold a portion of it besides executing a power of attorney in respect of another portion of the land without any resolution of the other trustees.
5. It is being further contended in the petition that the petition is not maintainable as the same involves factual disputes and that the scope of interference by the Court in the matter of investigation is very bleak and the Inherent powers ought to be exercised very sprangly as held by the Apex Court. To sum up the respondents in the objections seek dismissal of the petition in limine.
Heard learned counsel for the parties and perused the record.
6. Before adverting to the rival submissions of the appearing counsel for the parties, it becomes imperative to refer hereunder the ambit and scope of Inherent powers, enshrined in Section 482 CrPC as laid down by the Apex Court from time to time: -
The law is that in exercise of the wholesome power vested in the High Courts under Section 482 of the Criminal Procedure Code corresponding to Section 561 of the J&K Criminal Procedure Code, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the 6 High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
In the law laid down by the Supreme Court in the case of "State of Haryana and Others V. Bhajan Lal and others", reported in 1992 Supp(1) SCC 335, the Supreme Court has elaborately considered the scope of Section 482 Cr.P.C. In this case the Supreme Court considered the power of the High Court to quash the entire criminal proceeding including the FIR. The case under scrutiny arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. After noticing the earlier pronouncements on the subject, the Supreme Court detailed with lace certain categories of cases by way of illustration where power under Section 482 of the Cr.P.C. can be exercised to prevent the abuse of the process of the Court or secure the ends of justice. Paragraph 102 7 provides seven categories of cases wherein resort can be had to the provisions of Section 482 Cr. P.C. and these are extracted below:
"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 entirely 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 and 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 police officer without any 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 concerned Act (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 concerned Act, 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 view to spite him due to private and personal grudge."8
7. Having regard to the facts and circumstances of the case coupled with the aforesaid legal position, the first question that begs consideration of this court would be as to whether the FIR in question could have been registered by the respondents after more than two and a half years i.e., after lodging of the complaint by the respondent No. 4 and receipt of communication dated 20.03.2018, along with the said complaint from the Secretariat of the Hon'ble Governor, and also that once an enquiry was conducted by the official respondents into the said complaint of the respondent No. 4 and closed the same with the approval of Inspector General of Police with an advice to the complainant to seek available remedy before appropriate forum, if so advised. In this regard, a reference to the judgment of the Apex Court passed in case titled as "Lalita Kumari v. Govt. of Uttar Pradesh and Others" reported in (2014) 2 SCC 1 would be relevant and germane herein, wherein at paras 93, 96&97 following has been provided: -
93. The object sought to be achieved by registering the earliest information as FIR is inter alia twofold: one, that the criminal process is et into motion and is well documented from the very start; and second, that the earliest information received in relation to the commission of a cognizable offence is recorded so that there cannot be any embellishment, etc. later.
96. The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice-
delivery system but also to ensure "judicial oversight". Section 157(1) deploys the word "forthwith". Thus, any information received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary.
97. The code contemplates two kinds of FIRs: the duly signed FIR under Section 154(1) is by the informant to the officer concerned at the police station. The second kind of FIR could be which is registered by the police itself on any information received or other than by way of an informant [Section 157(1)] and even this information has to be duly recorded and the copy should be sent to the Magistrate 9 forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages:
97.1. (a) It is the first step to "access to justice"
for a victim.
97.2. (b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.
97.3 (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
97.4 (d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR.
8. A further reference to paras 119 and 120 of the Lalita Kumari supra case would also be appropriate and germane hereunder: -
119. Therefore, in view of various counter claims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.
Conclusion/Directions:
120. In view of the aforesaid discussion, we hold:
120.1. The Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.10
120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
9. Perusal of the record, admittedly would reveal that the respondent No. 4 had filed a complaint in the year 2018 against the petitioner on the same lines on which the FIR in question has been registered and the said complaint had been enquired into by the official respondents without registering an FIR suggesting in view of law laid down by the Apex Court in Lalita Kumari Supra case that the information/complaint received/filed by the respondent No. 4 did not disclose commission of a cognizable offence by the petitioner and that in order to ascertain as to 11 whether cognizable offence is disclosed or not, held an enquiry associating the petitioner therein and upon conclusion of the said inquiry, the official respondents closed the same with the approval of the competent authority manifesting that the complaint/information did not disclose commission of a cognizable offence committed by the petitioner herein in the matter while advising the complainant respondent No. 4 herein to seek available remedy before appropriate forum, if so advised.
10. Ironically, the official respondents on the same set of allegations leveled in the complaint of the respondent No. 4 against the petitioner after a period of more than two and a half years have registered the FIR in question overlooking the fact of the enquiry conducted earlier and the closure of the same with the approval of the competent authority. The registration of impugned FIR thus can said to be in breach and violation of the principles and propositions laid down by the Apex Court in Lalita Kumari Supra case. The FIR has been registered upon the complaint of the respondent No. 4 who seemingly has concealed the fact of holding of enquiry and its result thereof.
11. It is pertinent and significant to mention here that while the petitioner in the petition has referred to the holding of an enquiry into the matter by the official respondents in respect of the will in question and its closure at para 10 of the petition, the respondents in their reply surprisingly have remained silent in this regard except stating that there is no legal bar under law that a fresh enquiry cannot be initiated into the matter. The reply so submitted by the respondents is misconceived besides being misdirected, in that, as per the record the questionnaire stands issued to the petitioner on 27.06.2018 and the enquiry stands closed on 15.12.2018 upon receipt of reply to the questionnaire by the petitioner on 30.07.2018 and that the FIR in question stands registered pursuant to a communication dated 20.03.2018 from the Secretariat of the Hon'ble Governor, along with the complaint lodged by respondent No. 4. The impugned FIR has thus been registered indisputably pursuant to the communication 12 dated 20.03.2018, on 08.02.2021 after more than two and a half years and in presence of the enquiry and its closure report.
12. The another key question which requires determination in the instant case would be as to whether necessary ingredients of offences punishable under Section 406, 120(b) RPC read with 5(2) Prevention of Corruption Act are made out against the petitioner.
13. In order to address to the aforesaid question, a reference to Section 405, 406, &120(b) becomes imperative;
Section 405 reads as under: -
"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 willfully suffers any other person so to do, commits "criminal breach of trust".
[Explanation [1].--A person, being an employer [of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] [Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] 13 Section 406 reads as under: -
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.
Section 120-B. reads as under: -
S.120-B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
14. What emerges from the reading of above, a criminal breach of trust as postulated under Section 405 of RPC entails misappropriation or conversion of another's property for one's own use with dishonest intention. The Section clearly prescribes dishonest intention as a precondition for even prima facie establishing the commission of said offence. Thus, in order to assess the question whether the actions of the petitioner herein were committed in furtherance of a dishonest or fraudulent scheme is one which requires scrutiny.
15. Coming to the facts of the case at hand the petitioner herein admittedly has been appointed as the executor of the will made by the testator namely Late Himnishwar Gupta. A reference to para 2, 5 and 6 of the will being on record becomes necessary hereunder: -
2. I hereby provide that after my death my property aforesaid and my all-other properties, which are not described in this WILL shall be utilized to create a TRUST in my name for the following purposes: -
a. Out of my assets, properties and income derived from my aforesaid properties, the Trust shall be utilized for conferring prizes, Medals, Scholarships in the following manner: -
i. The Ist Medal/or prize/Scholarship shall be called "RAJIV GANDHI MEDAL/PRIZE AND/OR 14 SCHOLARSHIP". It shall be conferred upon the Ist position holder of Law Faculty of the University of Jammu. The amount of prize/scholarship shall be determined by the Trustees of the Trust aforementioned. ii. The second Medal/Prize/Scholarship shall be called as "RAO BAHADUR BRINDABAN MEDAL/PRIZE/SCHOLARSHIP" and shall be conferred upon a Social worker every year who is an activist engaged in the welfare of the public of Jammu and Kashmir.
iii. The third Medal/Prize/Scholarship shall be in the name of my mother and shall be called as "SMT. GIAN DEVI MEDAL/PRIZE/SCHOLARSHIP" and shall be conferred upon a lady social worker/activist of Jammu and Kashmir every year.
b. The money needed for the aforesaid purpose shall be raised from out of the annual income of my property aforesaid. It after utilizing the annual income of my property aforesaid and after spending money for proper up-keep of my property, if any, same is found balance, the Trustees shall be at liberty to use the same for any other social purpose for the betterment of people of Jammu and Kashmir.
5. The Trustees may convert my property in cash assets and deposit the same in some bank. Only annual income from out of the said deposit shall be used for the aforesaid purposes and main corpus of the Trust i.e., the property or cash assets in lieu thereof shall not be utilized or allowed to deplete.
6. That in the event of my death all the legal formalities in respect of due performance of this WILL and competition of all other legal formalities for the creation of the trust s aforementioned shall be looked after and managed by Sh. A.V. Gupta, Advocate, High Court of J&K, Jammu, who is related to me and also a friend of my family. He shall be the Executor of my this WILL and Last Testament.
16. A plain reading of the above would reveal that the petitioner herein admittedly had been appointed as executor of the will by the testator Late Himnishwar Gupta and the trustees nominated in Paragraph 3 of the will had been permitted to convert the property in cash assets and deposit the same in some bank and the 15 petitioner herein even though having sold some properties pursuant to the will deed in question yet has deposited the proceeds in the bank as such by no sense of imagination, the petitioner can said to have done the same dishonestly or with fraudulent intention, therefore, the basic ingredients of Section 405/406 is missing and is not made out.
17. Insofar as the offence of 120(b) RPC is concerned, for the commission of an offence of criminal conspiracy there must have been an agreement between the persons who are alleged to have conspired and that agreement should be either for doing an illegal act or for doing by illegal means. The gist of offence of conspiracy is the agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of conspiracy. Perusal of the FIR alleges that the petitioner has intentionally, deliberately and dishonestly disposed of a property thereby committed breach of trust by misusing the property by way of misappropriation left behind by Late Himnishwar Gupta for his ulterior motive in connivance/conspiracy with the Revenue Officer/officials at the helm of affairs detailing out their names there in the FIR alleging that the said revenue officers/officials have abused their official position thereby causing wrongful gain to themselves.
18. As has been noticed and observed in the preceding paras, the person of the petitioner admittedly had been the executant of the will authorized along with trustees to dispose of the properties of the trust and to deposit the proceeds of the same in the bank and utilize the interest accrued thereupon which admittedly has been done by the petitioner, however, without there being any dishonest and fraudulent intention. The levelling of the allegation of conspiracy against the petitioner without mentioning as to how, where, and which of the conspirators hatched the conspiracy and for what purpose, or circumstances warranting inference of existence of conspiracy, in law is not enough to bring persons to face the trial in a criminal case. A complaint should make out a 16 prima facie case of conspiracy against the accused persons. One cannot have the construction of a fine superstructure without a foundation. Thus, the offence under Section 120(b) RPC as well is not made out against the petitioner in the FIR in question.
19. Insofar as commission of offence under Section 5(2) of the PC Act is concerned, same as well is not attracted in the case of the petitioner, in that, same refers and relates to a public servant and that the petitioner is not a public servant, as such, the alleged offences need not to be dealt with or discussed herein while considering the case of the petitioner in the instant petition.
20. Risking repetition, it is reiterated that the FIR in question has been registered by the respondents in total disregard to the principles and propositions laid down by the Apex Court in Lalita Kumari Supra case after more than two and a half years against the petitioner ignoring and overlooking the closure report of enquiry initiated in the year 2018 by the official respondents upon the complaint of the respondent No. 4 filed on the same set of facts on which the impugned FIR has been registered. The said inaction on the part of the respondents cannot be countenanced by law and the FIR in question cannot thus said to be legally tenable.
21. Furthermore, the allegations in the FIR in question otherwise as well do not even if taken at their face value, prima facie, constitute any offence, or make out a case against the petitioner but same manifestly and seemingly is attended with mala fide registered with an ulterior motive for settling personal grudge at the instance of the respondent No. 4.
22. Furthermore, the allegations levelled in the complaint inasmuch as in the FIR in question certainly involve determination of issues which are essentially of civil nature aimed at to seek protection and administration of a charitable trust and its properties created pursuant to the will of Late Himnishwar Gupta and also for removal of the petitioner as a trustee for securing properties of the trust as also for directing accounts and enquiries.
23. For what has been observed, considered and analyzed herein above, the instant petition merits acceptance. Accordingly, petition is allowed and impugned FIR No. 06/2021 dated 8th of 17 February, 2021 registered with Police Station Crime Branch, Jammu is quashed insofar as it relates to the petitioner. Scanned record be returned to the counsel for the respondents.
24. Disposed of along with connected CrlM(s).
(Javed Iqbal Wani) Judge Jammu 29.11.2021 "Junaid"
Whether the Order is speaking? Yes
Whether the Order is reportable? Yes