Allahabad High Court
Jai Prakash Gupta vs State Of U.P. And Another on 29 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 501
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD "A. F. R." Reserved on 20.10.2020 Delivered on 29.01.2021 Court No. - 42 Case :- APPLICATION U/S 482 No. - 36722 of 2016 Applicant :- Jai Prakash Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Yadav Counsel for Opposite Party :- G.A.,Kshitiz Shailendra Hon'ble Ravi Nath Tilhari,J.
1. Heard Sri Rajesh Yadav, learned counsel for the applicant and Sri Kshitiz Shailendra, learned counsel for the opposite party no.2 and learned AGA appearing for the State and perused the material brought on record.
2. This application under Section 482 of the Code of Criminal Procedure (Cr.P.C.) has been filed with prayer to quash the entire proceeding of Criminal Case No.16323 of 2016(State Vs. Jai Prakash Gupta and others), pending in the court of Additional Chief Judicial Magistrate, Court No.3, Moradabad, under Sections 420, 467, 468, 471, IPC, arising out of Case Crime No. 743(wrongly typed as 747) of 2015, Police Station Majhola, District Moradabad. Further prayer is to quash the charge-sheet dated 15.07.2016 and cognizance order dated 01.10.2016 passed in the said case.
3. Briefly stated the facts of the case as per the pleadings exchanged in the case, are that one Ashwani Kumar Bansal, father of opposite party no.2 is said to have executed an unregistered will in favour of Jai Prakash Gupta, the applicant on 25.07.2007, which was later on registered on 15.10.2013, under Section 40 of the Indian Registration Act, before the Sub-Registrar, Tehsil Tanda, District Rampur. On the basis of the said will mutation proceedings were initiated by the applicant in which the Tehsildar (Judicial), Moradabad, passed order dated 30.09.2015 in his favour and the Khatauni of the concerned Khata was corrected by mutating the name of the applicant. The opposite party no.2 challenged the order dated 30.09.2015, in Revision No.C-20151300001638, under Section 219 of U.P. Land Revenue Act and in the said revision the order dated 30.09.2015 was set-aside by the Additional Commissioner, Moradabad Division, Moradabad by order dated 08.09.2016. The Revision No.2098 of 2016 field by the applicant, before the Board of Revenue, challenging the order dated 08.09.2016 was dismissed by order dated 10.08.2017. The applicant filed Writ B No.4068 of 2018, and it is the case of the opposite party no.2 that although he had field the caveat, but ignoring the caveat, the petition was filed, in which misleading arguments were advanced. The interim order dated 25.05.2018 was passed, but a perusal thereof shows that the applicant represented before this Court in the writ petition, that Ashwani Kumar Bansal was the father of the applicant, whereas, it is submitted that the applicant was his servant and it was so mentioned in the alleged will itself. The will deprived all the legal heirs of the property and was in favour of the servant. The opposite party no.2 is said to have filed counter affidavit in the writ petition which matter is said to be pending.
4. Ankush Bansal son of late Ashwani Kumar Bansal alongwith his mother (widow of Ashwani Kumar Bansal) filed Original Suit No.377 of 2015(Smt. Prabha Bansal and others Vs. Jai Prakash Gupta and others) against the applicant, for a decree of permanent injunction with respect to the land of Gata No.720, area 1.497 hectares, subject matter of the will, to restrain the defendants 1 and 2 therein from transferring the said land and from interfering in the possession of the plaintiffs of that suit. The opposite party no.2 was also impleaded as Performa defendant no.3, since he was not available, but the suit was filed also for his interest. The learned Civil Judge (Junior Division), Moradabad granted an ad-interim temporary injunction by order dated 14.10.2015.
5. A suit being Original Suit No.311 of 2016 has also been filed by the opposite party no.2 and others, challenging the will in question which suit has been connected with Original Suit No.377 of 2015 and is pending before the civil court concerned.
6. The opposite party no.2 lodged first information report in Case Crime No.0743 dated 02.11.2015, under Sections 420, 467, 468, 471, IPC against the applicant and two others, inter-alia on the averments that after the death of Ashwani Kumar Bansal on 10.02.2008, the names of his legal heirs, the opposite party no.2, his brother and mother was recorded in the Khatauni in the year 2009. The applicant-accused no.1 with two other accused persons to grab the valuable land of the informant prepared the forged will dated 25.07.2007, in which the other co-accused persons were made the witnesses, giving wrong address of the father of the informant at Tanda, Rampur, whereas he never resided at Tanda, Rampur. The said will was got registered on 15.11.2013, whereas the father died in the year 2008 and on the basis of the said forged will the order of mutation was obtained ex-parte without any notice to the legal heirs. The informant came to know about the said will and the forgery when the applicant made efforts to sell the land to one Surajpal.
7. The FIR was challenged in Criminal Misc. Writ Petition No.27751 of 2015, in which by order dated 24.11.2015 passed by this Court, the arrest of the applicant was stayed till submission of the police report under Section 173(2) Cr.P.C. After investigation, the investigating officer submitted charge-sheet against the applicant and the other co-accused persons under Sections 420, 467, 468, 471, IPC, on 15.07.2016, upon which the Magistrate took cognizance by order dated 01.10.2016. The present petition under Section 482 Cr.P.C. has been filed with the prayer to quash the said charge-sheet, the order of cognizance and the proceedings of the Criminal Case No.16323 of 2016.
8. Learned counsel for the opposite party no.2 has pointed out that the opposite party no.2 filed application under Section 482 Cr.P.C. No.44523 of 2018(Ambuj Bansal Vs. State of U.P. and 3 others), which application was disposed of by order dated 10.12.2018 with a direction to the court below to secure the presence of the accused persons and frame charges, expeditiously, preferably within a period of three months from the date of production of a certified copy of that order, before the Magistrate concerned.
9. It has been stated in the counter affidavit that the applicant was released on bail by order dated 09.03.2018 passed by this Court, in Criminal Misc. Bail Application No.19625 of 2017. The opposite party no.2 filed Criminal Misc. Bail Cancellation Application No.2224 of 2018, which was disposed of by order dated 15.10.2009 and thereby the trial court was also directed to conclude the trial of the case according to Section 309 Cr.P.C. on day to day basis, if there was no legal impediment.
10. During arguments, learned counsel for the opposite party no.2 pointed out that the trial of the criminal case is going on with a rapid pace pursuant to the orders of this Court; the witnesses have already been examined and trial is at the stage of Section 313 Cr.P.C.
11. Learned counsel for the applicant submitted that the opposite party no.2 filed application under Section 482 Cr.P.C. No.44523 of 2018, without disclosing the correct facts and consequently the ex-parte order dated 10.12.2018, to expedite the trial was passed. He has further submitted that the opposite party no.2 again lodged a first information report in Case Crime No.314 of 2018, under Sections 420, 467, 468 and 471 IPC, at Police Station Majhola, in which also the charge-sheet was filed, against which the applicant field Application under Section 482 Cr.P.C. No.38662 of 2018, in which this Court by order dated 20.12.2018, stayed further proceeding of Case No.7669 of 2018, arising out of Case Crime No.314 of 2018.
12. Be that as it may, from the facts as narrated by the applicant and the opposite party no.2 it is evident that in Application under Section 482 Cr.P.C. No.44523 of 2018, this Court by order dated 10.12.2018 has issued direction to the court below to secure the presence of the accused and frame charges expeditiously, within the time stipulated in that order. It is also evident that in Criminal Misc. Bail Cancellation Application No.2224 of 2018, there is direction to the trial court to conclude the trial of the case according to Section 309 Cr.P.C. on day to day basis, if there was no legal impediment, vide order dated 15.10.2009. Nothing has been brought on record, nor even argued, that any application or any proceeding against the aforesaid orders dated 10.12.2018 and 15.10.2009 was taken by either of the parties for recall or setting aside of the said orders. Those orders, stand even today, as per the submissions advanced.
13. Learned counsel for the applicant submitted that in view of the pendency of civil suits, one for permanent injunction and the other for cancellation of the will deed, as well as the proceedings for mutation on the basis of will at the stage of writ petition, the initiation of the criminal proceedings in pursuance of the first information report, is an abuse of the process of the Court and both the proceedings Civil and Criminal cannot go simultaneously. He has submitted that the dispute is predominantly a civil dispute and so long as the document i.e. the will, is not decided to be forged by the civil court, the criminal persecution could not be lodged. The civil dispute is being given the color of the criminal dispute. On this ground, challenge has been made to the charge-sheet as well as the proceedings of the criminal case. Learned counsel for the applicant has placed reliance on the judgment of Hon'ble the Supreme Court, in the case of ''Prof R.K. Vijayasarathy and Another Vs. Sudha Seetharam and another', reported in (2019) 16 SCC 739.
14. Per contra, learned counsel for the opposite party no.2 submitted that the civil proceedings and the criminal proceedings can go on simultaneously. The criminal proceedings are to be given primacy or preference, over civil proceedings. Merely because, the civil proceedings are pending, the criminal proceedings cannot be set-aside or quashed. He has placed reliance on the following judgments in support of his submissions:-
1. "P. Swaroopa Rani Vs. M. Hari Narayanan @ Hari Babu", 2008(72) ALR 171 (SC).
2. "Syed Askari Hadi Ali Angustine Imam and another Vs. State (Delhi Administration and another)", (2009) 5 SCC 528.
3. "M.S. Sheriff and P.C. Damodar Nair Vs. State of Madras", AIR 1954 SC 397.
4. "Kamala Devi Agarwal Vs. State of West Bengal", AIR 2001 SC 3846.
5. "M. Krishnaan Vs. Vijay Singh and another", AIR 2001 SC 3014.
6. "Vishnu Dutt Sharma Vs. Daya Sapra", 2009(4) AWC 3405 (SC).
7. "Trisuns Chemical Industry Vs. Rajesh Agarwal and others", AIR 1999 SC 3499.
8. "Tapas Adhikri and others Vs. State of U.P. and others", 2009(5) ADJ 649.
9. "Sharad Agrawal Vs. State of U.P. and others", in Criminal Misc. Application No.35595 of 2019, decided on 25.09.2019, passed by this Court.
15. Learned AGA submitted that the civil and criminal proceedings can go on simultaneously and the pendeny of the civil suit cannot be a bar to the institution of the criminal proceeding, if, prima-facie, a case for commission of offence is made out on the averments made in the FIR or complaint and consequently on the ground of the dispute being pending in the Civil Court or before Revenue Court, the criminal proceedings are not required to be quashed.
16. I have considered the submissions advanced by the learned counsel for the applicant, learned counsel for the opposite party no.2 and the learned AGA and have also perused the material brought on record.
17. In view of the submissions advanced by the learned counsel for the parties, the following points arise for consideration:-
(i) Whether the civil and criminal proceedings can simultaneously go on or in view of pendency of civil proeedings, the criminal proceedings are to be quashed ?
(ii) Whether in the present case, in view of the pendency of the civil suits for permanent injunction; and also for cancellation of the will; the criminal proceedings, in question, are liable to be quashed.?
18. Taking the first point, first, to answer the same this Court proceeds to consider some of the judgments on the point in issue as hereinafter.
19. In the case of "M.S. Sheriff and P.C. Damodar Nair Vs. State of Madras", AIR 1954 SC 397, the Constitution Bench of the Hon'ble Supreme Court held that as between the civil and the criminal proceedings, the criminal matters should be given precedence, however, observing that no hard and fast rule can be laid down. It was further held that the possibility of conflicting decisions in the civil and criminal courts was not a relevant consideration but, the only relevant consideration was the likelihood of embarrassment. Another factor, which weighed was that a civil suit often drags for years and it was undesirable that a criminal prosecution should wait till everybody had forgotten about the crime. The public interest demanded that the criminal justice should be swift and sure. The guilty should be punished while the events are still fresh in the public mind and the innocent should be absolved as early as is consistent with a fair and impartial trial. It would be undesirable to let things slide till memories have grown too dim to trust. It was also held that special considerations obtaining in a particular case may make some other course, more expedient, and just. An example was given that the civil case or the other criminal proceeding may be so near to its end, as to make it inexpedient to stay it, in order to give precedence to the other proceeding.
20. In M.S. Sheriff (Supra) the proceedings of the civil suits were stayed till the finalization of criminal proceedings. It is relevant to reproduce paragraph nos.14 to 16 of M.S. Sheriff (Supra) as under:-
"14.We were informed at the hearing that two further sets of proceedings arising out of the same facts are now pending against the appellants. One is two civil suits for damages for wrongful confinement. The other is two criminal prosecutions under S. 344. I.P.C. for wrongful confinement, one against each Sub-Inspector. It was said that the simultaneous prosecution of these matters will embarrass the accused. But after the hearing of the appeal we received information that the two criminal prosecutions have been closed with liberty to file fresh complaints when the papers are ready, as the High Court records were not available on the application of the accused. As these prosecutions are not pending at the moment, the objection regarding them does not arise but we can see that the simultaneous prosecution of the present criminal proceedings out of which this appeal arises and the civil suits will embarrass the accused. We have therefore to determine which should be stayed.
15.As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decision in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of the Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16.Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interest demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."
21. In "Lal Muni Devi (Smt.) Vs. State of Bihar, (2001) 2 SCC 17, the Hon'ble Supreme Court held that there could be no dispute to the proposition that if the complaint does not make out an offence it can be quashed. However, it was also held that it is also settled law that facts may give rise to a civil claim and also amount to an offence and merely because a civil claim is maintainable that does not mean that the criminal complaint cannot be maintained. The Hon'ble Supreme Court held that, as in that case, the High Court did not state that on facts no offence was made out, the criminal prosecution could not have been quashed merely on the ground that the dispute was a civil wrong.
22. In M. Krishnan (Supra) the Hon'ble Supreme Court held that in almost all cases of cheating and fraud in the whole transaction, there is generally some element of civil nature. In that case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. It was held that the proceedings could not be quashed only because the respondents there in, had filed a civil suit with respect to those documents. In a criminal Court the allegations made in the complaint have to be established independently, notwithstanding, the adjudication by a civil court. If the complainant had failed to prove the allegations made by him in the complaint the accused would be entitled to discharge but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. The civil proceedings as distinguished from the criminal action have to be adjudicated and concluded by adopting separate yard sticks. In criminal cases, the onus is, of proving the allegations beyond reasonable doubt, which is not applicable to civil proceedings which are decided merely on the basis of probabilities with respect to the acts complained of.
23. It is appropriate to reproduce para 5 of M. Krishnan (Supra) as under:-
"Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case, the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of. The High Court was not, in any way, justified to observe:
"In my view, unless and until the civil court decides the question whether the document are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous."
24. In "Kamala Devi Agarwal (Supra) the Hon'ble Supreme Court on consideration of the earlier authorities on the point, held, that criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. It is considered appropriate to refer paragraph nos.9, 10 and 17 of Kamala Devi Agarwal (Supra) as under:-
"9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana v. Bhajan Lal , Rajesh Bajaj v. State NCT of Delhi this Court in Trisuns Chemical Industry v. Rajesh Agarwal & Ors. [1999 (8) SC 687] held:
"Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent, powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal and Rajesh Bajaj v. State NCT of Delhi ].
In the last referred case this court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations:
"10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating were committed in the course of commercial and also money transaction."
17. In view of the of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."
25. In Vishnu Dutt Sharma (Supra), also, it has been held that any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding. If a primacy is given to a criminal proceeding, the civil suit must be determined on its own keeping in view the evidence brought on record in such suit and not in terms of the evidence brought in the criminal proceedings.
26. In P. Swaroopa Rani (Supra) the Hon'ble Supreme Court held that it is well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.
27. In Syed Askari Hadi Ali (Supra) the question involved was the effect of pendency of a probate proceeding vis-a-vis a criminal case involving allegations of forgery of a will. The Hon'ble Supreme Court, reiterated, that indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case. The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case. Ordinarily, a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that the disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. It has been so held in paragraph nos.21, 22 and 23, which are reproduced as under:-
"21. Indisputably, in a given case, a civil proceeding as also a criminal proceeding may proceed simultaneously. Cognizance in a criminal proceeding can be taken by the criminal court upon arriving at the satisfaction that there exists a prima facie case. The question as to whether in the facts and circumstances of the case one or the other proceedings would be stayed would depend upon several factors including the nature and the stage of the case.
22. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible. The law in this behalf has been laid down in a large number of decisions. We may notice a few of them.
23. In M.S. Sheriff & anr. vs. State of Madras & Ors. [AIR 1954 SC 397], a Constitution Bench of this Court was seized of a question as to whether a civil suit or a criminal case should be stayed in the event both are pending; it was opined that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment."
28. In this connection, reference also deserves to be made to the judgments of the Hon'ble Supreme Court in the cases of "G. Sagar Suri Vs. State of U.P.", AIR 2000 SC 754; "M/s. Indian Oil Corporation Vs. M/s NEPC India Ltd.", AIR 2006 SC 2780 and "Mohammed Ibrahim & others Vs. State of Bihar & Another", (2009) 8 SCC 751.
29. In G. Sagar Suri (Supra), the Hon'ble Supreme Court held that in the exercise of jurisdiction under Section 482 Cr.P.C. the High Court has to see if the matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. It has been further held that if, the High Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that ends of justice required that the proceeding be quashed, the High Court is entitled to quash the criminal proceeding. Paragraph Nos.8 and 9 of G. Sagar Suri (Supra) read as under:-
"8. Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction- under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.
9. In State of Karnataka v. L. Muniswamy and Others, AIR (1977) SC 1489 = [1977] 3 SCR 113, this Court said that in the exercise of the wholesome power under Section 482 of the Code 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 proceedings are to be quashed."
30. In "M/s. Indian Oil Corporation (Supra), one of the points which came up for consideration before Hon'ble the Supreme Court was:
"Whether existence or availment of civil remedy in respect of disputes arising from breach of contract, bars remedy under the criminal law ?".
It was held that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure, through criminal prosecution should be deprecated and discouraged. The principles laid down in the earlier judgments, were quoted, one of which was that the given set of facts may make out; (a) purely a civil wrong or (b) purely a criminal offence or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law may also involve a criminal offence. As the nature and scope of civil proceedings are different from criminal proceedings, the mere fact that the complaint raised a commercial transaction, or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. Paragraph nos. 9 and 10 of the report are being reproduced as under:-
"9. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar vs. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan vs Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [2000 (2) SCC 636], this Court observed :
"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
31. In "Mohammed Ibrahim (Supra), the Hon'ble Supreme Court held that there is growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Court should ensure that the proceedings before it are not sued for settling scores or to pressurize parties to settle civil dispute. But, at the same time, it should be noted that several dispute of a civil nature may also contain the ingredient of criminal offences and if so, will have to be tried as criminal offences, even if, they also amount to a civil dispute.
32. In Trisuns Chemical Industry (Supra) relied on by learned counsel for the opposite party no.2, it was held that the provision incorporated in the agreement for referring the disputes to arbitration is a remedy for affording relief to the party affected by breach of the arrangement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigation agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Preemption of such investigation would be justified only in very extreme case.
33. This case Trisuns Chemical Industry (Supra) is not on the point, as the case at hand is not of pendency of any arbitration proceedings, but is a case of pendency of civil suits in civil court. There is vast difference between the powers and jurisdiction of the civil court and the arbitrator, as is evident from Trisuns Chemical Industry (Supra) that the arbitrator can not conduct a trial of any act which amounted to an offence.
34. In Tapas Adhikari (Supra) this Court has also held that so far as the pendency of civil suit is concerned, the proceedings in civil or revenue courts are filed for the purpose of obtaining different reliefs. If remedy is available in civil or revenue courts, but on the basis of allegations, prima facie, any criminal offence is made out, the same may not be quashed, only on the ground that civil proceedings are pending. The civil and criminal proceedings may run parallel, therefore, on account of pendency of the civil suit, the proceedings of the criminal case cannot be quashed.
35. In Sharad Agrawal (Supra) also this Court has held that in a case where an act is both criminal offence and a civil wrong, the law appears to be consistent that both the civil court and criminal court would have jurisdiction independent of the other. In certain cases, depending upon the facts, proceedings before the civil court or the criminal court may be stayed, pending out come of the case before the other, but on those consideration proceedings before the criminal court or before the civil court, cannot be quashed or scuttled. It was further held that it is not the law that the proceedings before the criminal court are to be quashed because the same facts in issue i.e. subject matter of criminal proceedings between the parties is also the subject matter of a pending civil suit.
36. In the case of ''Professer R.K.Vijaysarathy (Supra), on which learned counsel for the applicant has placed reliance, the Hon'ble Supreme Court, in paragraph nos. 27, 28 and 29 has held as under:-
27. Learned Senior Counsel for the appellant contended that the actions of the first respondent constitute an abuse of process of the court. It is contended that the present dispute is of a civil nature and the first respondent has attempted to cloak it with a criminal flavor to harass the aged appellants. It is also contended that there is an undue delay in filing the complaint from which the present appeal arises, and this demonstrates the mala fide intention of the first respondent in filing the complaint against the appellants. Learned Senior Counsel for the appellants relied on the decision of this Court in "State of Karnataka v L Muniswamy", (1977) 2 SCC 699. In that case, the prosecution alleged that eight of the accused had conspired to kill the complainant. The Karnataka High Court quashed the proceedings on the ground that no sufficient ground was made out against the accused. A three judge Bench of this Court dismissed the appeal by the State with the following observations:
"7...In the exercise of this wholesome power, 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 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."
28. The jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised with care. In the exercise of its jurisdiction, a High Court can examine whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the court.
29. In the present case, the son of the appellants has instituted a civil suit for the recovery of money against the first respondent. The suit is pending. The first respondent has filed the complaint against the appellants six years after the date of the alleged transaction and nearly three years from the filing of the suit. The averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the first respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients necessary to constitute a criminal offence. The complaint filed by the first respondent against the appellants constitutes an abuse of process of court and is liable to be quashed."
37. From the above, it is evident that in Prof. R.K. Vijayasarathy (Supra), the Hon'ble Supreme Court has clearly held that the jurisdiction under Section 482 of the Code of Criminal Procedure (Cr.P.C.) has to be exercised with care and in the exercise of its jurisdiction the High Court shall examine whether a matter which was essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredient required to constitute a criminal offence are not made out from a bare recording of the complaint, the continuation of the criminal proceedings will constitute abuse of the process of the Court. However, it has not been laid down that merely because a civil suit is pending the criminal proceeding cannot simultaneously proceed or in view of mere pendency of civil proceedings, the criminal proceedings are to be stayed or quashed. In Prof. R.K. Vijayasarathy (Supra), the Hon'ble Supreme Court found that the complaint did not disclose the ingredient necessary to constitute offences under the Penal Code and also that an attempt was made to cloak a civil dispute with criminal nature, despite the absence of the necessary ingredients to constitute the criminal offence and consequently that was an abuse of the process of the Court.
38. The principles of law with reasons as laid down in the aforesaid judgments are that:
(1) As between the civil and the criminal proceedings, ordinarily, the criminal matters should be given precedence. The reason being, that a civil suit for often drags on for years and it would be undesirable that a criminal prosecution should wait till the civil proceedings are decided. The public interest demands that the criminal justice should be swift and sure. Another reason being that if mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants apprehending criminal action against them, may frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings which cannot be the mandate of law. The criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending.
(2) While no one with a legitimate cause or grievance should be prevented from seeking remedy available in criminal law, but at the same time it is also to be considered that there is growing tendency in many disputes i.e. business/family/matrimonial, etc. to convert purely civil disputes into criminal case, for so many reasons, e.g. civil law remedies are time consuming; or if a person would somehow be entangled in a criminal prosecution, there is possibility of an imminent settlement. The criminal proceedings cannot be a short cut of other remedies available in law. If complainant is attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, the same cannot be allowed to settle the scores or to pressurize parties to settle civil dispute.
(3) Several disputes of a civil nature which may also contain the ingredient of criminal offences will also have to be tried as criminal offences, even if, they also amount to civil disputes.
(4) Whether civil proceedings or criminal proceedings shall be stayed depends upon the facts and circumstances of each case. No hard and fast rule can be laid down. The test is whether the allegations in the complaint disclose a criminal offence or not. The stage of proceeding is a relevant consideration as well.
(5) Mere pendency of civil suit cannot be a ground to quash the criminal proceedings.
39. Point No.1 as framed in para 17 is answered in terms of paragraph no.38, above.
40. Now I proceed to consider point no.2, "Whether in the present case in view of pendency of civil suits for permanent injunction and also for cancellation of the will, the criminal proceedings in question are liable to be quashed.?"
41. Submission of the learned counsel for the applicant is that so long as the civil suit is pending in which the genuineness of the will is under question and so long as that issue is not decided the criminal prosecution should not proceed and be quashed. This submission deserves rejection, as mere pendency of civil suits cannot be a ground to quash the criminal proceedings.
42. In respect to the above submission, reference may be made to the judgment of Hon'ble the Supreme Court in the case of Syed Askari Hadi Ali (Supra), in which the Hon'ble Supreme Court considered earlier judgment in the case of ''Sardool Singh Vs. Nasib Kaur', 1987 Supp SCC 146. In the case of Sardool Singh (Supra), a civil suit between the parties was pending wherein the contention of the respondent therein was that no will was executed, whereas, the contention of the appellants therein was that a will was executed by the testator. A case for grant of probate on the basis of same will was also pending. The civil court was therefore seized of the question as regards the validity of the will. The matter was subjudice in those two cases in the civil courts. The Hon'ble Supreme Court took the view that at that juncture, the respondent therein could not, be permitted to institute a criminal prosecution on the allegation that the will was a forged one and that question was to be decided by the civil court after recording the evidence and hearing the parties in accordance with law; and it would not be proper to permit the criminal prosecution, when the validity of the very will was being tested in a civil court. Hon'ble Supreme Court, in Syed Askari Hadi Ali(Supra), observed with respect to the case of Sardool Singh (Supra), as regard the aforesaid, that "no ratio, however, can be culled out, therefrom. Why such a direction was issued or such observations were made, do not appear from the said decision." Paragraph no.35 of Syed Askari Hadi Ali (Supra), reads as under:-
"35. The question came up for consideration again before this Court in Sardool Singh & Anr. vs. Smt. Nasib Kaur [1987 (Supp.) SCC 146], wherein it was opined:
"A civil suit between the parties is pending wherein the contention of the respondent is that no Will was executed whereas the contention of the appellants is that a Will has been executed by the testator. A case for grant of probate is also pending in the court of learned District Judge, Rampur. The civil court is therefore seized of the question as regards the validity of the Will. The matter is sub judice in the aforesaid two cases in civil courts. At this juncture the respondent cannot therefore be permitted to institute a criminal prosecution on the allegation that the Will is a forged one. That question will have to be decided by the civil court after recording the evidence and hearing the parties in accordance with law. It would not be proper to permit the respondent to prosecute the appellants on this allegation when the validity of the Will is being tested before a civil court. We, therefore, allow the appeal, set aside the order of the High Court, and quash the criminal proceedings pending in the Court of the Judicial Magistrate, First Class, Chandigarh in Smt. Nasib Kaur v. Sardool Singh. This will not come in the way of instituting appropriate proceedings in future in case the civil court comes to the conclusion that the Will is a forged one."
No ratio, however, can be culled out therefrom. Why such a direction was issued or such observations were made do not appear from the said decision."
43. In the case of M. Krishnan(Supra), wherein the judgment of the High Court was under challenge in which the High Court had observed that "in my view, unless and until the civil court decides the question whether the document are genuine or forged, no criminal action can be initiated against the petitioners and in view of the same, the present criminal proceedings and taking cognizance and issue of process are clearly erroneous." the Hon'ble Supreme Court held that the High Court was not in any way justified to observe the same. It was held that the criminal proceeding could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid document.
44. Learned counsel for the applicant could not demonstrate before this Court as to how any cognizable offence was not made out against the applicant and as to how the offences under which the trial is proceeding, after submission of the charge-sheet, those offences were not made out. It has not been submitted by the learned counsel for the applicant that even on the basis of the material collected during investigation, the offence was not made out for submission of the charge-sheet. Any such material has also not been brought on record before this Court. Consequently, there is no occasion for this Court to enter into this aspect of the matter, if on the averments in the FIR and the materiel collected during investigation, any case for quashing of the charge-sheet and the proceedings of the criminal case is or is not made out, on the ground that such proceedings do or do not amount to abuse of the process of Court under Section 482 Cr.P.C.
45. The trial is proceeding against the applicant on day-to-day basis. It is pending at the stage of Section 313 Cr.P.C. There is direction of this Court, vide order dated 10.12.2018 passed in Application under Section 482 Cr.P.C. No.44523 of 2018, and vide order dated 15.10.2009 passed in Criminal Misc. Bail Cancelation Application No.2224 of 2018, to conclude the trial according to Section 309 Cr.P.C. and on day-to-day basis. Considering the stage of the proceedings of the criminal case, as well, which is near to its end, the case for quashing of the criminal proceedings is not made out.
46. Thus considered this Section 482 Cr.P.C. petition deserves to be dismissed and is dismissed being devoid of merits.
47. No orders as to costs.
Order Date :- 29.01.2021 (Ravi Nath Tilhari,J.)
VKG