Madhya Pradesh High Court
Sanjay Khatri vs The State Of Madhya Pradesh on 8 February, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 08th OF FEBRUARY, 2024
M.CR.C. No.44713 of 2023
BETWEEN:-
1. SANJAY KHATRI S/O SHRI MURLIDHAR
KHATRI, AGED ABOUT 35 YEARS,
OCCUPATION BUSINESS R/O 634, BEHIND
SUZUKI SHOWROOM NAPIER TOWN
JABALPUR, DISTRICT JABALPUR
2. DILIP KHATRI S/O SHRI MURLIDHAR
KHATRI, AGED ABOUT 32 YEARS,
OCCUPATION BUSINESS, R/O 634 BEHIND
SUZUKI SHOWROOM, NAPIER TOWN,
JABALPUR, DISTRICT JABALPUR
3. VIVEK KHATRI S/O SHRI MURLIDHAR
KHATRI, AGED ABOUT 30 YEARS,
OCCUPATION BUSINESS, R/O 634, BEHIND
SUZUKI SHOWROOM, NAPIER TOWN,
JABALPUR, DISTRICT JABALPUR
4. MURLIDHAR SHARMA S/O LATE GOVIND
RAM KHATRI, AGED ADULT, OCCUPATION
BUSINESS, R/O 634, BEHIND SUZUKI
SHOWROOM, NAPIER TOWN, JABLAPUR,
DISTRICT JABALPUR
.....PETITIONERS
(BY SHRI SANKALP KOCHAR - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH THE
P.S. OMTI, DISTRICT JABALPUR (MP)
2. MANINDER SINGH KANDHARI S/O LATE
JAGJEET SINGH KANDHARI, AGED ABOUT
ADULT, R/O CHINTAMNI SAHU COLONY,
MAHANADDA, MADANMAHAL, JABALPUR
......RESPONDENTS
2
(RESPONDENT/STATE BY SHRI ALOK AGNIHOTRI - GOVERNMENT
ADVOCATE)
(RESPONDENT NO.2/COMPLAINANT BY SHRI NIKHIL TIWARI -
ADVOCATE)
..............................................................................................................................................................................
Reserved on : 05.12.2023
Pronounced on : 08.02.2024
..............................................................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
The petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for quashing the offence registered against them at Police Station Omti, District Jabalpur, vide FIR No.260/2022 under Sections 384, 386, 389 and 120-B of the Indian Penal Code.
2. Facts of the case in nutshell are that the complainant (respondent No.2) on 24.05.2022 had filed a complaint at Police Station Omti narrating the incident said to have been occurred w.e.f. 09.01.2015 till 22.05.2022 whereby his house situated at Mahanadda and shop situated behind Ayushman Hospital, Jabalpur, got transferred fraudulently in favour of the petitioners by way of registered sale-deeds.
(2.1) However, according to the petitioners, sale-deed relating to house in question got executed in favour of Himanshi Khatri w/o Dilip Khatri (petitioner No.2) by one Baljeet Kaur Khurana on 20.03.2020, who had purchased the said house from Indu Keli w/o Dr. Sushil Kumar Keli vide registered sale-deed dated 26.06.2018.
(2.2) In the complaint/FIR, it is alleged that the house in question got transferred in the name of Himanshi Khatri w/o Dilip Khatri 3 (petitioner No.2) by way of a registered sale-deed giving threat to the complainant as his son was involved in playing IPL satta with the present petitioners, who used to organize such game in which the complainant's son had lost almost one crore rupee and as such, his son was under a huge debt of the petitioners. That apart, in the complaint, it is further alleged that the petitioners were not only asking the money which his son had lost in playing satta, but interest over the said money was also being demanded by them. The complainant in his complaint had further alleged that the petitioners were giving threat to him saying that if the amount is not returned, they would kill his son and thereafter, on 30.06.2018, petitioner No.1 had not only withdrawn the amount of Rs.35 lacs from the SBI account of the complainant through his self cheques, but an agreement had also been executed in the office of one Umesh Kushwaha, Advocate, for selling Chawla Restaurant. As per the complainant, when he was failed to return the amount as demanded by the petitioners again and again, then he was threatened to be implicated in a false case and thereafter, on 07.06.2019, initially the amount of Rs.40 lacs got transferred in the account of the complainant by petitioner No.2 through RTGS, but later on, it got withdrawn by the said petitioner through the complainant's self cheques and also by his ATM card and thereafter, an agreement for selling Chawla Restaurant got also executed in which Rs.35 lacs and Rs.40 lacs total Rs.75 lacs were shown to be taken as an advance/token amount. Apart from this, petitioner No.3 had also pressurized the complainant's son to become a member of monthly kitty in which they snatched Rs.17 lacs from his son. As per the complainant, day-by-day his son was being pressurized to execute the sale-deed of Chawla Restaurant and thereafter, putting his wife and son on a gunpoint, he was compelled to execute the sale-deed and then only he had executed the sale-deed. According to the 4 complainant, though several complaints were made to the police, but nothing was done and when the petitioners got arrested by the police in some other offence for organizing cricket satta, then only he got strength and made the complaint to the police on 24.05.2022.
3. According to the petitioners, the sale-deed of house in question was executed by one Baljeet Kaur Khurana in favour of Himanshi Khatri w/o Dilip Khatri whereas the shop was purchased by them from the complainant vide registered sale-deed dated 20.03.2020 on a sale- consideration of Rs.90 lacs. According to them before purchasing the said shop, a public notice (Annexure-A/6) was also published in a local news- paper inviting objection in that regard. Later on, the petitioners came to know that the shop in question is under mortgage as the complainant had taken a loan amounting to Rs.19 lacs against the said property which is yet to be repaid and in addition, Rs.22 lacs and Rs.2.5 lacs are also due against the said property towards lease rent and taxes and as such, total Rs.43,50,000/- is outstanding against the said property and this fact had not been disclosed by the complainant on or before executing the sale- deed, therefore, they made a complaint to the police on 06.08.2020 (Annexure-A/7) for taking action against the complainant who by suppressing such material information played fraud with them. Thereafter, an affidavit was executed by the complainant on 29.08.2020 (Annexure-A/8) admitting therein that total outstanding towards the shop i.e. Rs.43,50,000/- which was not disclosed by him on or before entering into agreement of sale with the petitioners, shall be paid to them and apart from that the complainant had also admitted that amount of Rs.20 lacs which was borrowed by him from the petitioners shall also be paid to them. However, a consent letter was also executed on the same day before 5 the witnesses admitting the liability by the complainant towards the petitioners. Thereafter, a complaint was also made against the complainant to the police by petitioner No.1 alleging therein that despite executing the affidavit and consent letter, the amount outstanding towards the petitioners is not being paid by the complainant. Subsequent thereto, an offence vide FIR No.300/2021 under Section 420 of the IPC was registered against the complainant. However, the petitioners have also filed a rent agreement (Annexure-A/11) showing that the complainant was a tenant in the house in question whereas Himanshi Khatri w/o Dilip Khatri (petitioner No.2) was the owner of the said house and as per the settled conditions of the said rent agreement when the complainant was failed to pay the rent then a legal notice was issued to him on 06.08.2020 by the petitioners in which the complainant was asked to handover the vacant possession of the said house.
4. From the averments made in the petition, though the petitioners have tried to establish that several transactions had taken place between the parties continuously from 2015 till 2022 and thereafter, sale-deed also got executed before the Registrar, but during that period nothing was informed by the complainant either to the authorities or to the police in respect of pressure created upon him by the petitioners or in respect of transactions alleged to have been taken place between the parties under coercion. By submitting various documents, the petitioners have also tried to substantiate that just to create pressure upon them, the complainant had registered the instant offence against them whereas they are innocent and have falsely been implicated.
5. Shri Kochar, learned counsel for the petitioners has submitted that if the sale-deeds got executed fraudulently on a gunpoint or under threat then 6 the same could be challenged by the complainant by filing a civil-suit so as to get it declared void, but no civil litigation got initiated at any level by the complainant. He has further submitted that there is nothing produced by the prosecution even to show that the complainant and his son had made any payment to the petitioners under any compulsion. He has further submitted that although, in an enquiry conducted by the police, they came to a conclusion that no offence is made out against the petitioners. He has further submitted that that the sale-deed of house in question was basically executed by the owner of the house namely Baljeet Kaur Khurana but not by the complainant. He has also submitted that the complainant had played fraud with the petitioners and when they had lodged a complaint in this regard to the police, then to save himself and give a new colour to the dispute, present offence got registered against the petitioners. He has also submitted that the FIR lodged by the complainant is based upon false and incorrect facts without there being any sufficient explanation as to why the same got registered at a belated stage. He has submitted that the transactions which are in fact purely of civil nature cannot be given the shape of criminal activity and in fact, he has submitted that it is a malicious prosecution and an abuse of process of law. In support of his submissions, he has placed reliance upon the cases of Supreme Court reported in (2005) 1 SCC 122 [Zandu Pharmaceutical Works Ltd. and others Vs. Mohd. Sharaful Haque and another], (2017) 13 SCC 369 [Vineet Kumar and others Vs. State of Uttar Pradesh and another], Criminal Appeal No.2341 of 2023 [Mahmood Ali and others vs. State of U.P. and others] as also in the order of High Court of Allahabad (Lucknow Bench) passed in application under/Section 482 Nos.7569 of 2022 and 7018 of 2022 decided on 21.11.2022 [Mohd. Adil Rashid and ors. Vs. State of UP and others] and [Mohd. Rafiq Vs. State of UP and 7 others].
6. On the other hand, Shri Agnihotri, learned Government Advocate appearing for the respondent/State has opposed the submissions advanced by learned counsel for the petitioners and submitted that looking to the crime committed by the petitioners, offence has rightly been registered against them and as such, he has submitted that this petition is without any substance and liable to be dismissed.
7. Shri Tiwari, learned counsel for respondent No.2 has also opposed the submissions advanced by learned counsel for the petitioners and submitted that looking to the allegations levelled against the petitioners in the FIR, the police has rightly registered the offence against them. He has further submitted that the reliability of witnesses and the evidence produced cannot be tested by the Court at this stage. Although, during the course of arguments, learned counsel for respondent No.2 has fairly admitted that against the sale-deeds said to have been executed fraudulently, no civil proceeding has been initiated by the complainant.
8. Considering the arguments advanced by learned counsel for the parties and on perusal of record, I am of the opinion that transactions took place between the parties are purely of civil nature. The complainant, if was being pressurized by the petitioners, could have approached the police immediately and even before the Registrar when the sale-deeds were being executed, he could have raised his voice. There are several documents showing the complainant's admission and his assurance for returning money to the petitioners. Not only this, when offence got registered against the complainant under Section 420 of the IPC that too on a complaint made by the petitioners, then he could have informed the police saying that the transactions which had been given rise for registration of 8 offence are fraudulent transactions as he was being compelled to execute the sale-deeds. However, from the documents annexed with the petition i.e. rent agreement, it reflects that the complainant was a tenant in the house in question. Merely because an allegation has been made saying that all the transactions had been taken place under threat of the petitioners and during that period or even at the time of execution of the sale-deeds, no voice was raised by the complainant, then after lapse of a long period, neither such type of allegation can be accepted nor the prosecution in such a circumstance can be permitted to be initiated because it is nothing but an abuse of process of law. There is no material available showing that the complainant was ever under any type of fear or pressure of the petitioners. That apart, there is nothing available on record to show that the transactions alleged to have been taken place between the parties were nothing but an extortion. Sitting silent since long without initiating any civil action or approaching the Court for setting aside the sale-deeds said to have been executed under extortion, is not a good gesture.
9. The Supreme Court in the case of Zandu Pharmaceutical Works Ltd. (supra) has observed that though the power provided under Section 482 of the CrPC has to be exercised sparingly but at the same time for doing substantial justice, the Court should exercise the said power. The Supreme Court has also observed that it would be an abuse of process of law to allow any action which would result in injustice and prevent promotion of justice. The Supreme Court in the said case has observed as under:-
"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, 9 namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : (1960) 3 SCR 388 : 1960 Cri LJ 1239] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last case, it is important to bear in mind the 10 distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.
11. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] . A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378- 79, para 102) "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 11 person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 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. The 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 Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 2 SCR 336 : (1964) 1 Cri LJ 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 a 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 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 that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no 12 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 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 themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142] , State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304 :
AIR 1999 SC 1044] , State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415] , Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503 : AIR 1999 SC 3596] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] .]"
10. In the case of Vineet Kumar (supra), the Supreme Court relying upon the case reported in 1992 Supp (1) SCC 332 [State of Harayan and others Vs. Bhajan Lal and others] has elaborately considered the scope and ambit of Section 482 of the CrPC and observed as under:-
"24. The judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] has elaborately considered the scope and ambit of Section 482 CrPC. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Sections 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CrPC/Article 226 of the Constitution in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain categories of cases by way of illustration where power under Section 482 CrPC can be exercised to prevent abuse of the process of the Court or secure the ends of justice.
25. Para 102 which enumerates 7 categories of cases where power can be exercised under Section 482 CrPC is extracted as follows: (Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , SCC pp. 378-79) "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 13 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala 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."14
* * *
40. Reference to the judgment of this Court in Prashant Bharti v.
State (NCT of Delhi) [Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 : (2013) 3 SCC (Cri) 920] is relevant for the present case. In the above case the complainant lady aged 21 years lodged an FIR under Sections 328 and 354 IPC with regard to the incident dated 15-2-2007. She sent a telephonic information on 16-2-2007 and on her statement FIR under Sections 328 and 354 IPC was registered against the appellant. After a lapse of five days on 21-2-2007 she gave a supplementary statement alleging rape by the appellant on 23-12-2006, 25-12-2006 and 1-1-2007. The statement under Section 164 CrPC of the prosecutrix was recorded. Police filed charge-sheet under Sections 328, 324 and 376 IPC. Charge-sheet although mentioned that no proof in support of crime under Sections 328/354 could be found. However, on the ground of statement made under Section 164 CrPC charge-sheet was submitted.
40.1. Para 10 of the judgment which notes the charge-sheet is as follows: (Prashant Bharti case [Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 : (2013) 3 SCC (Cri) 920] , SCC p. 300) "10. On 28-6-2007, the police filed a charge-sheet under Sections 328, 354 and 376 of the Penal Code. In the charge-sheet, it was clearly mentioned that the police investigation, from different angles, had not yielded any positive result. However, the charge-sheet was based on the statement made by the complainant/prosecutrix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged against the appellant-accused. A relevant extract of the charge-sheet depicting the aforesaid factual position, is being reproduced below:
'I, the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of the accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Sections 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill (sic). However, prosecutrix Priya Porwal made statement on 21-2-2007 and on 27-2-2007 under Section 164 CrPC which is sufficient in support of his challan for the offence under Section 376 IPC.'"
(emphasis in original) 40.2. The writ petition was filed by the accused for quashing the FIR which was dismissed by the High Court on 27-8-2007. Thereafter, charges 15 were framed on 1-12-2008. Dissatisfied with the framing of charges criminal revision petition was filed which was dismissed by the Delhi High Court on 16-1-2009 [Prashant Bharti v. State, 2009 SCC OnLine Del 4204] . The order of the Additional Sessions Judge has been extracted by this Court in para 14 which is quoted below: (Prashant Bharti case [Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 : (2013) 3 SCC (Cri) 920] , SCC p. 301) "14. Dissatisfied with the action of the trial court in framing charges against him, the appellant-accused filed Criminal Revision Petition No. 08 of 2009, whereby he assailed the order dated 1-12-
2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16-1-2009 [Prashant Bharti v. State, 2009 SCC OnLine Del 4204] , by inter alia observing as under: (Prashant Bharti case [Prashant Bharti v. State, 2009 SCC OnLine Del 4204] , SCC OnLine Del para 12) '12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this revision petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.'"
40.3. The appeal was filed against the aforesaid judgment of the High Court by the accused contending that there was sufficient material collected in the investigation which proved that allegations were unfounded and the prosecution of the appellant was an abuse of process of the court. In para 23 this Court noted several circumstances on the basis of which this Court held that judicial conscience of the High Court ought to have persuaded it to quash the criminal proceedings. This Court further noticed that the investigating officer has acknowledged that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 CrPC. In paras 24 and 25 of the judgment the following was stated: (Prashant Bharti case [Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 : (2013) 3 SCC (Cri) 920] , SCC pp. 308-09) "24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge-sheet dated 28-6- 16 2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 CrPC.
25. Based on the holistic consideration of the facts and circumstances summarised in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar case [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the appellant-accused, in exercise of the inherent powers vested with it under Section 482 CrPC. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Penal Code against the appellant-accused, and the consequential charge-sheet dated 28-6-2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1-12-2008, deserves to be quashed. The same are accordingly quashed."
40.4. Thus, the above was the case where despite statement under Section 164 CrPC by the prosecutrix the Court referring to material collected during investigation had held that the case was fit where the High Court ought to have quashed the criminal proceedings."
11. Furthermore, in a case reported in (2009) 8 SCC 751 [Mohammed Ibrahim and others Vs. State of Bihar and another], the Supreme Court dealing with the situation as exists in the present case has observed as under:-
"8. This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] and Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188]) Let us examine the 17 matter keeping the said principles in mind.
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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 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."
1812. More so, the Supreme Court in the case of Mahmood Ali (supra) has observed that on the basis of information supplied if prima facie it appears that the story is concocted and fabricated then taking into account the parameters laid down in the case of Bhajan Lal (supra), power provided under Section 482 of the CrPC can be exercised. The Supreme Court in the said case has observed as under:-
"10. We are of the view that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed. It is pertinent to note that the FIR in question came to be lodged after a period of 14 years from the alleged illegal acts of the appellants. It is also pertinent to note that in the FIR no specific date or time of the alleged offences has been disclosed.
11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters are:-
"(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 engrafted in any of the provisions of the Code or the concerned Act (under which a criminal 19 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 a view to spite him due to private and personal grudge."
We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra).
12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
13. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to 20 prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-
"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p.869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring 21 about its sudden death....."
(Emphasis supplied)"
13. The Allahabad High Court in the case of Mohd. Adil Rashid (supra) dealing with the situation when dispute of civil nature converted into criminal offence has observed as under:-
"8. It is further submitted that the registered sale deed executed in favour of the applicant - Mehrulnisha pertaining to Khasra No.154 has not been declared null and void by any civil court and only a suit for injunction has been filed by the applicant Mehrulnisha wherein the order of status quo has been passed by the appellate court and unless and until the sale deed executed by the Mamta Sahkari Grah Nirman Samiti Limited, G.B. Pantnagar, Khurram Nagar, Lucknow is not declared null and void, no criminal consequences could be attached therewith.
9. It is further submitted that the first information report itself contains the fact that informant had agreed to give some flats to the applicants which though is not admitted to the applicants but is sufficient to project that the dispute is purely of civil nature between the parties and the informant, who is in habit to purchase the disputed properties, had purchased the property from one Manju Rawat with whom the applicant Mehrulnisha is litigating before the civil court.
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21. Perusal of the record would also reveal that the applicants have brought on record a registered sale deed executed in favour of Smt. Mehrulnisha by Mamta Sahkari Grah Nirman Samiti Limited on 21.03.1990 pertaining to the residential plot nos.38, 39 and 40 falling under Khasra No.154 admeasuring 4500 square feet. The record would further reveal that in 2018, applicant Smt. Mehrulnisha had filed a civil suit bearing O.S. No.2160 of 2018 in the Civil Court, Lucknow against Smt. Manju Rawat, Mazin Khan and one Yogesh Kumar Tiwari praying to restrain them from making any interference in their peaceful possession of plot nos.38, 39 and 40 bounded at the foot of the plaint, falling under Khasra No.154.
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23. Perusal of the record would also reveal that thereafter on a misc. civil appeal preferred by the applicant Smt. Mehrulnisha bearing Misc. Civil Appeal No.47 of 2019, the District Judge, Lucknow vide order dated 09.04.2019 directed the parties to maintain status quo, which according to learned counsel for the parties is continuing till now, a copy of this order dated 09.04.2019 has been placed on record as 22 Annexure No.9. It is also evident from the record that applicant - Mohd. Rafiq @ Allu Miyan had also lodged an F.I.R. bearing Case Crime No.0316 of 2021 at Police Station Gomti Nagar, Lucknow North, under Sections 323, 447, 504, 506 I.P.C. on 08.09.2021 against informant Vaibhav Srivastava and Mazin Khan.
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28. The above discussions and law is sufficient to reveal that both the parties are having registered sale deed in their favour and the whole area of Khasra no.154 was not purchased by Smt. Usha Devi rather a portion of the same was purchased by her. It appears to be admitted to the informant also that out of the total area of Khasra No.154 i.e. 0.0710 hectare, only 0.0472 hectare was purchased by Smt. Usha Devi. The Civil Court has also decreed a suit filed by Smt. Usha Devi with regard to only area 0.0472 hectare and not with regard to the whole of the area of Kharsa No.154. It is also admitted to the parties that the sale deed in favour of the applicant Smt. Mehrulnisha has not been cancelled or ignored by any court of competent jurisdiction and a status quo order has also been passed by the District Judge, Lucknow in miscellaneous civil appeal filed by applicant Smt. Mehrulnisha. The question whether Smt. Usha Devi had purchased the whole of the land or part of the same or as to whether the registered sale deed executed by Mamta Sahkari Grah Nirman Samiti Limited in favour of applicant Smt. Mehrulnisha was a forged sale deed and in fact was not executed by the Mamta Sahkari Grah Nirman Samiti Limited could only be decided by a civil court and thus there is no element of either forgery or of cheating in the instant dispute and the parties appear to be contesting their lis on the bonafide belief that they are the owner of the disputed property. During the course of deliberations, it is admitted by learned counsel for the party no.2 that it is due to the injunction order passed by the District Judge in miscellaneous civil appeal preferred by applicant Smt. Mehrulnisha, he is not able to do constructions at the disputed site, thus in the considered opinion of this Court so far as the instant F.I.R. is concerned and the material collected by the investigating officer clearly reveal that the dispute between the parties is purely of civil nature and thus there is no criminal element in it. The parties are highly inimical and appears to have lodged F.I.Rs. earlier also against each other."
14. Looking to the aforesaid legal preposition and enunciation of law, I am of the opinion that the offence registered against the petitioners is nothing but an abuse of process of law for the reason that the story as has been presented by the complainant in the FIR without there being any supporting material appears to be concocted and fabricated. Although, 23 when several transactions were being taken place between the parties, the complainant had an occasion to approach the authorities or to the police in respect of his grievance, but without pointing out such crime after such a long time, he had made the instant complaint to the police alleging that the sale-deeds of the house and shop got executed by him under extortion knowing fully well that registration of offence even otherwise will not make the sales invalid unless the dispute is raised before the proper forum i.e. Civil Court. It shows the intent of the complainant that just to create pressure upon the petitioners, he got the offence registered against them so as to get the property back. That apart, at the time of arguments, learned counsel for respondent No.2 has also failed to give any logical reason as to why the complainant could not raise civil dispute in time. Under the aforesaid facts and circumstances of the case, the complainant cannot be allowed to initiate prosecution against the petitioners which prima facie appears to be false and fabricated. Therefore, to secure the ends of justice, the parameters as laid down in the case of Bhajan Lal (supra) for quashing the FIR can be adopted in the present case.
15. Accordingly, this petition is allowed. Thus, the offence registered against the petitioners at Police Station Omti, District Jabalpur, vide FIR No.260/2022 under Sections 384, 386, 389 and 120-B of the IPC is hereby quashed. Consequently, all subsequent proceedings arising out of the said FIR are also quashed.
(SANJAY DWIVEDI) JUDGE dm DEVASHISH MISHRA 2024.02.09 15:07:14 +05'30'