Jharkhand High Court
Shirin Fazalbhoy And Ors. vs State Of Bihar (Now Jharkhand) And Anr. on 7 May, 2003
Equivalent citations: 2004CRILJ1916, 2004 CRI. L. J. 1916, 2004 AIR - JHAR. H. C. R. 1108, (2003) 3 EASTCRIC 177, (2003) 3 JLJR 201
Author: Deoki Nandan Prasad
Bench: Deoki Nandan Prasad
ORDER Deoki Nandan Prasad, J.
1. This application has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") for quashing Complaint Case No. 570 of 1998 and also for any consequential orders and the order dated 24-11-1998, whereby and whereunder Sri S.S. Rao, Judicial Magistrate, Ranchi took cognizance of the offence under Sections 384, 420, 403, 471 and 120B of the Indian Penal Code.
2. The case of the prosecution in brief is that accused Nos. 1 and 2 claim to be the trustee of Abdullah Fazalbhoy Charities Trust of Mumbai and accused No. 3 claims to be the Manager of the said Trust. One Govind Lalwani (deceased) was for a long time Secretary of Nutan Jai Bharat Housing Co-operative Society of Jai Bharat Building, Shankar Ghanekar Marg, Prabha Devi, Mumbai. As back as on 31-10-1949 Shanta Kumar Mitra (deceased ) husband of Mrs. Nirmala Mitra acquired from the Builder Deepchand and C. Gandhi the title and possession over a second floor flat as Flat No. C-2 of Jai Bharat Building (renumbered as Flat No. C-1 and presently numbered as Flat No. 47) and a garage in Prabha Devi, Dadar, Mumbai. On 4-9-1950 the said flat and garage were searched and thereafter sealed and locked by the Criminal Branch Bombay Police in connection with a criminal case registered against Shanta Kumar Mitra at Ranchi. The entire space in Jai Bharat Building is presently under the management of Nutan Jai Bharat Housing Co-operative Society.
3. On an application filed by the State of Bihar which was registered as Miscellaneous Judicial Case No. 31 of 1949, an order of attachment of all the movable and immovable properties belonging to Shanta Kumar Mitra was passed by the Judicial Commissioner, Ranchi on 18-8-1952 and, accordingly, several properties belonging to Shanta Kumar Mitra were attached. A receiver was also appointed by the learned Judicial Commissioner, Ranchi in terms of the order dated 18-8-1952 passed in M.J.C. No. 31 of 1949 and took charge of Flat No. 47, Shanta Kumar Mitra and others were tried in Sessions Trial and was convicted and sentenced for the various offences. In M.J.C. No. 31 of 1949 several claims and objections were filed after the death of Shanta Kumar Mitra. In the year 1975 Smt. Nirmala Mitra, his widow, was substituted in his place as opposite party in M.J.C. No. 31 of 1949. It is further alleged that accused persons along with Govind Lalwani entered into a conspiracy to defraud the Court of the learned Judicial Commissioner, Ranchi and the Receiver appointed by the said Court as well as Smt. Nirmla Mitra and could not bring the actual facts to the notice of the learned Judicial Commissioner, Ranchi or to the Court receiver. It is further alleged that in pursuance of the orders of the High Court and the Supreme Court, the learned Judicial Commissioner, Ranchi passed the order dated 30-3-1987 in M.J.C. No. 31 of 1949 wherby and whereunder it was held that only Rs. 33,00,000/- and odd was payable to the State of Bihar and such amount can be realised from the sale of attached gold and ornaments. The Receiver was also directed to handover vacant possession of all the other attached movable and immovable properties including Flat No. 47 and garage of Jai Bharat Building, Dadar, Mumbai to Smt. Nirmala Mitra and the said order remain intact even by dismissing S.L. (Cr.) 1621 of 1988 filed by the State of Bihar. In pursuance of the said order, the dues of Rs. 33,00,000/- lacs and odd to the State of Bihar was duly cleared by Smt. Nirmal Mitra and thereafter direction of the Judicial Commissioner, Ranchi regarding delivery of possession was passed in favour of Smt. Nirmla Mitra which starts phasewise implementation. It is further alleged that the accused persons suppressed the formation of Jai Bharat Housing Co-operative Society from the Court receiver. In spite of knowledge that 2nd Floor of Flat No. 47 and garage of Jai Bharat Building, Dadar, Mumbai belonged to Smt. Nirmla Mitra and that the same were in custodia legis, the accused persons and Govind Lalwani (now deceased) committed fraud and fabricated documents to cause issuance of Share Certificate No. 49 dated 15-12-1999 in favour of Abdulla Fazalbhoy Charities Trust and all these fabrications and forgery were done behind the back of the complainant and his Principal Smt. Nirmala Mitra.
4. By order dated 22-8-1995 passed in M.J.C. No. 31 of 1949 the learned Judicial Commissioner, Ranchi directed the Court Receiver to deliver with the help of Commissioner of Police, Bombay (now Mumbai) vacant possession of second floor of Flat No. 47 and garage of Jai Bharat Building, Prabha Devi, Dadar, Mumbai to the complainant. The possession of garage was handed over to the complainant on 18-9-1995. However, the vacant possession of the said flat has been handed over to the complainant on 10-10-1996. The accused persons initially wanted payment of Rs. 15,00,000/- to Abdulla Fazalbhoy Charitable Trust and assured the complainant that permission from the Charity Commissioner, Maharashtra would be obtained for executing and registering proper documents but later on the said amount was reduced to Rs. 10,00,000/-. Thereafter the complainant paid a sum of Rs. 2,00,000/- as advance against the demanded amount of Rs. 10,00,000/- through Banker's Cheque dated 27-12-1996 and the accused persons pressing hard demanding balance amount of Rs. 8,00,000/- on the plea that permission has already been obtained from the Charity Commissioner but it was revealed that the Charity Commissioner has already rejected the application for permission on 16-8-1997. The accused persons sent letter later on promising in writing to refund a sum of Rs. 2,00,000/- but the same has not been refunded and the accused persons have cheated the complainant by committing fraud and forging documents and also giving false assurance. A substantial sum of money was extorted from the complainant on false pretext. Accordingly, complaint case was filed.
5. The complainant was examined on oath. Witnesses were also examined under inquiry under Section 202 of the Code and after finding prima facie case; the learned Magistrate took cognizance of the offence, hence, this application.
6. Mrs. Seema Ali Khan, learned counsel appearing on behalf of the petitioners assailed the order taking cognizance on three folds. First it is submitted that the Court taking cognizance has got, no jurisdiction to entertain the complaint case as the property in question i.e. Flat No. 47 is situated at Mumbai. It is further argued that the agreement dated 5-5-1949 whereby the builders constructed the building and garage also executed in Mumbai and no occurrence whatsoever has taken place at Ranchi.
7. Secondly it was argued that no offence is made out as alleged. There was no inducement for committing cheating and no any document has been forged by the accused persons at any point of time. There is nothing material to show that which of the document was forged.
8. Lastly it has been argued that there is no mens rea for constituting the offence in the manner as alleged. Moreover, the accused persons are ready to refund the amount of rupees two lacs to the complainant for which a letter has already been sent and in order to harass the accused persons, this false case has already been sent and in order to harass the accused persons, this false case has been filed. Since the delivery of possession of the flat and garage in question of cheating does not arise. It is further argued that all the proceedings with regard to attachment of properties were initiated behind the back of the accused persons and there is no grievance/objections made by the receiver as well as the allegations made in the complaint is of civil nature and, therefore, there is no criminal liability on the part of the petitioner.
9. The learned counsel for the petitioners relied upon the cases reported in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh, AIR 1999 SC 2332 : (1999 Cri LJ 3361), Shanti Saroop Gupta v. Chandra Kant Bole, (1971 Pat LJR 650 : (1972 Cri LJ 794), Jamil Akhtar Javed v. State of Bihar, 1999 (2) Pat LJR 540, Trilok Singh v. Satya Deo Tripathi, AIR 1979 SC 850 : (1980 Cri LJ 822) , Bijoynand Patnaik v. Mrs. K.A.A. Brinnand, AIR 1970 Cal 110 : (1970 Cri LJ 332), Ram Prakash Mathur v. State of Bihar, 1998 (2) Pat LJR 288, State of Madhya Pradesh v. K.P. Ghiara , AIR 1957 SC 196 : (1957 Cri LJ 322), Rajesh Bajaj v. State N.C.T. of Delhi. AIR 1999 SC 1216 : (1999 Cri LJ 1833) and Hridaya Ranjan Prasad Verma v. State of Bihar, AIR 2000 SC 2341 : (2000 Cri LJ 2983). It is also argued that the complaint petition does not disclose a criminal liability and mere non fulfilment of commitment by the accused persons will not attract criminal liability.
10. On the other hand, Mr. V.P. Singh, Senior Counsel appearing on behalf of opposite party No. 2 submitted that the Court below rightly took cognizance of the offences and there is no illegality in the order impugned as the accused persons fraudulently and with ulterior intention committed forgery cheating by issuance of share certificates in favour of Abdullah Fazalbhoy Certificate Trust represented by the accused persons and all these were done behind the back of the complainant and his Principal Smt. Nirmala Mitra. It is further argued that the learned Magistrate, Ranchi has got jurisdiction to entertain the complaint case as the said Flat No. 47 was admittedly under the control and attachment by the order of the Judicial Commissioner, Ranchi and within the purview of the Receiver duly appointed by the Judicial Commissioner, Ranchi. It is further argued that the accused persons fraudulently issued the share in favour of Abdullah Fazalbhoy Certificate Trust and on the pretext of obtaining permission from the Charity Commissioner, the accused persons also demanded a sum of rupees fifteen lacs and later on rupees ten lacs as well as the complainant already paid a sum of Rupees two lacs in that situation. It is further argued that objection as regards to jurisdiction can be raised at any time during trial also which can be decided by the Court on the basis of the evidence collected at that time. It is further argued that accused Govind Lalwani (deceased) and the Manager of the Trust (M.D.) had also approached the complainant in the month of Oct. 1995 at Ranchi and stated that in flat the question has been auction sold, as a result of which, the share certificate in connection with Flat in question has been issued in favour of Abdullah Fazalbhoy Charity Trust but actually when the matter was enquired into, it was found that the Charity Commissioner already, rejected the application for permission and the allegation as made sufficiently constitute the offences. The learned counsel also relied upon the cases reported in Mdedchel Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., ((2000) 3 SCC 269 : (AIR 2000 SC 1869 : 2000 Cri LJ 1487) and Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 : (1979 SC 3499 : 1999 Cri LJ 4325). It is also argued that the complaint cannot be quashed merely on the ground that civil remedy is available.
11. There is specific allegation that accused persons also visited Ranchi and demanded a sum of rupees fifteen lacs on the flse pretext. Cheating has been defined in Section 415 of the Indian Penal Code, which reads as under :--
"415. Cheating. -- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived, to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
12. The complainant was examined on oath and he stated clearly that the accused visited Ranchi in the year 1995 and stated about the auction of the flat in question falsely and with mala fide intention in order to cheat the complainant resulting the complainant had to pay a sum of Rs. 2,00,000/-. The jurisdiction aspect becomes relevant only when the question of trial arose. After taking cognizance the Magistrate trying the case have to decide the case about jurisdiction in the matter as well when the evidence shall be adduced from both sides on the point. Thus it is open to the accused persons to raise objection to the jurisdictional point at any time when he can satisfy the Court concerned that the Court has no jurisdiction for trial.
13. It is well settled that criminal prosecution cannot be thwarted merely because civil proceedings are also maintainable. In the instant case, ingredients of the offences under Section 420 of the Indian Penal Code were not totally absent on the basis of the allegation in the complaint. However, those allegations in the complaint has to be decided on the basis of the evidence to be led at the trial in the complaint case, but because of the fact that there is a remedy provided for breach of contract, that does not by itself clothe the Court to come to a conclusion that civil remedy is the only remedy available to the appellant. Both criminal law and civil law remedy can be pursued in diverse situation.
14. The power of quashing of a complaint case should be exercised sparingly and with circumspection. The allegations made in the complaint must be taken as a whole and not in a partwise. If on the basis of allegation, a prima facie case is made out then this Court should be reluctant to interfere with the order of cognizance. This Court is also not justified in judging the probability, reliability and genuineness of the allegations made in the complaint case. Thus, in my view, the averments made in the complaint prima facie make out a case and, therefore, the Court below rightly took cognizance of the offences, which does not require for any interference.
15. In the result, this application is dismissed.