Karnataka High Court
K R Rajashekar Reddy vs State Of Karnataka on 19 March, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 07.02.2024
Pronounced on : 19.03.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5970 OF 2021
BETWEEN:
1 . K.R.RAJASHEKAR REDDY
S/O. RAMA REDDY,
AGED ABOUT 51 YEARS.
2 . SMT. BHAGYA RAJASHEKAR REDDY
W/O. K.R.RAJASHEKAR REDDY,
AGED ABOUT 44 YEARS.
BOTH ARE R/AT H.N.R. LAYOUT,
KAIKONDRAHALLI VILLAGE,
VARTHUR HOBLI,
BENGALURU EAST TALUK,
BENGALURU - 560 035.
... PETITIONERS
(BY SMT.LAKSHMY IYENGAR, SR.ADVOCATE A/W
SRI MANJUNATHA A.C., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY WHITEFIELD POLICE STATION,
BENGALURU - 560 094,
2
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2 . SMT. MANJULA
W/O. NANDISH GOWDA,
AGED ABOUT 52 YEARS
NO.165/75,
NALLURAHALLI ROAD,
SIDDAPURA VILLAGE,
RAMAGONDANAHALLI POST,
VARTHUR HOBLI,
WHITEFILED,
BENGALURU EAST TALUK,
BENGALURU - 560 066.
... RESPONDENTS
(BY SRI M.R.PATIL, HCGP FOR R-1;
SRI M.S.SHYAM SUNDAR, SR.ADVOCATE FOR
SRI G.K.KULKARNI, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT IN
CR.NO.72/2021, PENDING ON THE FILE OF THE ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU FOR THE OFFENCE P/U/S.417,
420, 467, 468, 471 R/W SEC.34 OF IPC VIDE ANNEXURE-A.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.02.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioners are before this Court calling in question registration of a crime in Crime No.72 of 2021 for offences punishable under Sections 417, 420, 467, 468, 471 r/w 34 of the IPC and pending before the Additional Chief Judicial Magistrate, Bengaluru Rural District. Petitioners are accused Nos. 1 and 2.
2. The facts, in brief, adumbrated are as follows:-
The complainant is the owner of a property measuring 2 acres in Sy.No.51 of Hancharahalli Village, Bidarahalli Hobli, Bangalore East Taluk. The complainant enters into two agreements of sale with the petitioners on two different dates. On 01-07-2015 she enters into an agreement of sale for one acre out of two acres in the said survey number for a consideration which was projected at `60,00,000/-. On the date of the agreement the petitioners pay a sum of `35,00,000/- pursuant to which, original title deeds were handed over to the petitioners. On 27-08-2015 comes the second agreement of sale for the remaining one acre again for the same consideration and in the same manner title deeds were handed over to the petitioners. These are the averments in the petition. The 4 complainant did not come forward to execute the sale deed. The agreements of sale remained as agreements of sale. The petitioners caused two legal notices requesting the complainant to come forward and execute the sale deeds in terms of agreements so entered into as observed hereinabove. The complainant did not budge. The petitioners then institute a suit for specific performance of agreements in two separate suits in O.S.Nos. 230 of 2021 and 231 of 2021 before the Senior Civil Judge, Bangalore Rural District, Bengaluru. The concerned Court, on 03-02-2021 grants a temporary injunction directing the complainant not to alienate the suit schedule properties till the next date of hearing. Immediately after receipt of notice from the civil Court, the complainant registers the impugned complaint which becomes a crime in Crime No.72 of 2021. Calling in question registration of crime, the petitioners are before this Court in the subject petition.
3. Heard Smt. Lakshmy Iyengar, learned senior counsel appearing for the petitioners, Sri M.R. Patil, learned High Court Government Pleader appearing for respondent No.1 and Sri M.S. 5 Shyam Sundar, learned senior counsel appearing for respondent No.2.
4. The learned senior counsel Smt. Lakshmy Iyengar appearing for petitioners would vehemently contend that the issue, which is on the face of it civil in nature, is being given a colour of crime, that too when the petitioners approach the civil Court and the civil Court grants injunction against the complainant not to alienate the property. The story is then twined of all the offences that are alleged - cheating and forgery. The learned senior counsel would, therefore, submit that permitting further proceedings would become an abuse of the process of law.
5. Per contra, the learned senior counsel Sri M.S. Shyam Sundar appearing for the complainant would seek to defend the action by contending that the petitioners were doing chit fund business and the complainant had joined in two chit fund schemes and was paying `3,00,000/- towards one chit and `6,00,000/- in respect of the other chit. Agreements were entered into between the parties. In order to cheat the complainant, the petitioners have resorted to forgery and have taken blank cheques from the hands 6 of the complainant and filled in the amount to show that it was the subject matter of agreements of sale. Therefore, he would contend that all these matters which pertain to cheating and forgery are a matter of trial and the petitioners have to come out clean in the trial. He would contend that after receipt of notice in O.S. Nos. 230 and 231 of 2021 the complainant comes to know about the agreements of sale which she had never signed and, therefore, immediately after receipt of notice, the crime is registered alleging cheating and forgery.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The afore-narrated facts are a matter of record. The transactions between the parties began with the agreements of sale entered into between the complainant and the petitioners. It is the averment that two agreements of sale happened on 01-07-2015 and 27-08-2015, pursuant to which an amount of `70,00,000/-
covering both the agreements of sale come to be transferred to the name of the complainant/2nd respondent. The transfer of amount is 7 not in dispute. The complainant did not come forward to execute the sale deeds. Legal notices are caused by the petitioners on 14-10-2020 seeking the complainant to come forward and execute the sale deed in furtherance of agreements of sale. The notices are received, but no reply is given by the complainant. The petitioners then file O.S.Nos. 230 and 231 of 2021 seeking the relief of specific performance of execution of sale deeds pursuant to agreements.
The concerned civil Court on 03-02-2021 grants an interim injunction which reads as follows:
"ORDER ON I.A.NO.I Plaintiffs have filed I.A.No.I under Order XXXIX Rules 1 and 2 read with section 151 of the Code of Civil procedure, 1908 praying the Court to grant an ad interim exparte order of temporary injunction restraining the defendant from alienating the suit schedule property in favour of third parties pending disposal of the suit.
2. I have heard the learned counsel for the plaintiffs on I.A.No.I and perused the entire records of the case.
3. On perusal of the suit records, it comes to be seen that the plaintiffs have sued the defendant for the relief of specific performance of contract based on a registered agreement of sale in question. It shows that the plaintiff before instituting the suit has caused legal notice to the defendant and in turn the defendant has neither replied to the legal notice nor come forward to execute the registered sale deed in favour of the plaintiff. Having gone through the materials placed on record, at this stage, this court finds that prima facie case in the matter. More so, if an exparte 8 temporary injunction is not granted to the plaintiff, the object of granting injunction and purpose of filing this I.A. would be defeated by delay. Further more, it may also leads to multiplicity of proceedings. Hence, I make the following:
ORDER
(a) Defendant is restrained by way of an ad interim temporary injunction from alienating the suit schedule property in any manner;
(b) this order will be in force till next date of hearing;
(c) the plaintiff shall comply with the provisions of Order XXXIX Rule 3(a) of CPC;
(d) no certified copy of this order shall be granted to the plaintiff, unless the above compliance is made by it.
Issue exparte order of ad-interim temporary injunction, emergent notice on I.A.No.I and suit summons to the defendant, if P.F. paid.
Returnable by 17-03-2021."
(Emphasis added) The complainant/defendant was restrained from alienating the suit schedule property. The notice from the civil Court is received by the complainant. Immediately thereafter comes the impugned complaint on 15-03-2021. Since the entire issue is now triggered from the complaint, I deem it appropriate to notice the complaint for the purpose of quick reference. It reads as follows:
9"ರವ ೆ: ¢£ÁAPÀ:
15.03.2021
ಅರ ಕ ೕ ರು,
ೈ ೕ ೕ ೕ ಾ ೆ,
ೆಂಗಳ ರು - 560 066.
ರವ ಂದ:
!ೕಮ#. ಮಂಜುಳ %ೋಂ ನಂ(ೕ) ೌಡ, 52 Years
,-ಾಸ: uÉÆÃ.165/75, ನಲೂ0ರಹ23 ರ4ೆ5, 67ಾ8ಪ:ರ, # 161, ೈ ೕ ಅಂ;ೆ, ೆಂಗಳ ರು - 560 066.
ªÉÆ £ÀA: 9449595100 ,ಷಯ: ನನ> ಸ?ಯನು> ಪ@ಜA BಾCರುವ %ೆ.ಆE.FಾಜGೇಖE FೆC ಮತು5 ಅವರ ಪ#> JಾಗK FಾಜGೇಖE FೆC ರವರುಗಳ ,ರುದL ದೂರು.
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10ಆದFೆ ನ >ಂದ ಪhೆ(ದ8 ಮೂಲ ಕ!ಯಪತ!ಗಳ 0ರುವ ನನ> ಸ?ಯನು> mೕಜA (±ÀÈn^) BಾC ಸದ ಎರಡೂ ಮೂಲ PÀæAiÀÄ¥ÀvÀæಗಳ 0ರುವ ಸfತು5ಗಳನು> ಅವರುಗಳ Yೆಸ ೆ ಕ!ಯದ ಕFಾರು ಪತ!ಗಳನು> ±ÀÈn^ BಾC%ೊಂಡು ಜoೕನುಗಳನು> ಲಪpಾ]ಸಲು ಮತು5 ನನ ೆ mಸ Bಾಡುವ ಸಲು ಾe ನನ ೆ %ೊಡ ೇ%ಾeರುವ WೕXಗಳ ಹಣವನು> %ೊಡ7ೇ mಸ Bಾಡುವ ಉ7ೆ8ೕಶ(ಂದ ಅವರು ೕಜA BಾC ಅವರ Yೆಸ ನ 0 ಶೃn^ BಾC%ೊಂCರುವ ಕ!ಯದ ಕFಾರು ಪತ!ಗಳ ಮೂಲಕ ೆಂಗಳ ರು ಾ!Bಾಂತರ 6, MಾKdಾಲದ 0 7ಾ ೆಯನು> ಹೂC ಓ.ಎ . ನಂ:230/2021 ಮತು5 ಓ.ಎ . ನಂ:231/2021 ಗಳ MೊXೕ tೊTೆ ಕ!ಯದ ಕFಾರು ಪತ!ದ ನಕಲು ನನ ೆ ಬಂ7ಾಗ ೊTಾ5eದು8 ನನ> ಸ?ಯನು> mೕಜA (ಶೃn^) BಾC ಕ!ಯದ ಕFಾರು ಪತ! BಾC%ೊಂC7ಾ8Fೆ ಎಂದು. ಆದFೆ Mಾನು ಅವರ Yೆಸ ೆ dಾವ:7ೇ ೕ#ಯ ಕ!ಯದ ಕFಾರು ಪತ!ವನು> BಾC%ೊX^ರುವ:(ಲ0. ಇವರುಗಳU ನನ ೆ mಸ, ವಂಚMೆ Bಾಡುವ ಉ7ೆ8ೕಶ(ಂದ ನನ> ಸ?ಯನು> ಪ@ಜA BಾC ಕ!ಯದ ಕFಾರು ಪತ! BಾC%ೊಂCರುTಾ5Fೆ. ಆದ8 ಂದ ಅವರುಗಳನು> ಾ ೆ ೆ ಕFೆ]6 ,;ಾರ ೆ BಾC ನನ ೆ %ೊಡ ೇ%ಾeರುವ ಹಣ, ಮೂಲ ಕ!ಯ ಪತ!ಗಳU Yಾಗೂ gಾ ;ೆಕುPಗಳನು> ಾಪಸುj %ೊಡ6, ಅವರುಗಳ ,ರುದL %ಾನೂನು ಕ!ಮ Tೆ ೆದು%ೊಂಡು ನನ ೆ MಾKಯ 7ೊರZ6%ೊಡ ೇ%ಾe ತಮv 0 ಮನ, BಾC%ೊಳU3Tೆ5ೕMೆ.
ವಂದMೆಗ-ೆ ಂ( ೆ;
ಮಂಜುಳ ಇಂ# ತಮv ,Gಾf6."
(Emphasis added) A perusal at the complaint would indicate that the complainant had invested in some chit funds which are allegedly run by the petitioners, the premium of which was `3,00,000/- and `6,00,000/-
totally `9,00,000/- every month. It is further averred that two blank cheques along with several blank documents were taken and therefore there is forgery. What is not divulged is the receipt of the 11 amount of `70,00,000/- by the complainant from the hands of the petitioners, which is a matter of record.
8. The learned counsel for the complainant has placed on record certain documents. The first document is a loan agreement between the 1st petitioner and the complainant. The loan agreement does not contain the signature of the 1st petitioner at all.
It only contains the signature of the complainant. The other documents are the documents of O.S.Nos. 230 and 231 of 2021 and agreements of sale that are subject matter of civil proceedings.
9. In the light of what is narrated hereinabove, what would unmistakably emerge is, that the issue, which on the face of it civil in nature, is sought to be dressed with a colour of crime, ostensibly to arm twist the petitioners who have instituted a civil suit seeking specific performance of agreements executed between the parties in the year 2015. The timing of registration of complaint also 12 assumes significance. No complaint is ever registered till 2021. The legal notices caused upon the complainant are not replied to. The moment the suits are preferred and injunction is granted on 03-02-2021 immediately comes the complaint on 15-03-2021. If this cannot be construed to be the matter which is purely civil in nature which is dressed with the colour of crime, it is ununderstandable, as to which can be.
10. The offences alleged are punishable under Sections 417, 420, 467, 468, 471 r/w 34 of the IPC. Section 417 and 420 read as follows:
"417. Punishment for cheating.--Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
... ... ...
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."13
Both these provisions need the ingredients as obtaining in Section 415 of the IPC. Section 415 reads as follows:
"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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."
Section 415 mandates that the accused should have induced the victim to enter into any transaction with a dishonest intention right from the beginning of the transaction. The subject case deals with transactions between the parties which are agreements of sale. If they are transactions between the parties i.e., agreements of sale and the consideration is transferred to the victim, it can hardly meet the ingredients of Section 415 of the IPC. Therefore, Sections 417 and 420 of the IPC are loosely laid against the petitioners.
What remains are, Sections 467, 468 and 471 of the IPC. They read as follows:
"467. Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable 14 security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
... ... ...
471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
Sections 467, 468 and 471 deal with forgery and usage of forged documents. The documents, in the case at hand, are registered agreements of sale which are signed by both the petitioners and the complainant. The complainant receives the amount which was the consideration of agreements and then turns around and registers the complaint, when specific performance was sought by instituting suits by the petitioners. If the agreements are a product of 15 signature of the complainant and have been in place for six years, the plea of forgery is also loosely laid against the petitioners as the petitioners prima facie have not used any forged documents, as they are the ones that are the subject matters before the civil Court.
11. If forgery and cheating are prima facie absent, permitting further proceedings would run foul of plethora of judgments of the Apex Court. The Apex Court in the case of DEEPAK GABA v.
STATE OF UTTAR PRADESH1 has held as follows:
".... .... ....
11. The private complaint filed by Respondent 2 complainant had invoked Sections 405, 420, 471 and 120- BIPC. However, by the order dated 19-7-2018, summons were directed to be issued only under Section 406IPC, and not under Sections 420, 471 or 120-BIPC. We have quoted the operative and reasoning portion of the summoning order, that records in brief the assertions in the complaint, to hold that Respondent 2 complainant had shown that "a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of the statements made by Shubhankar P. Tomar and Sakshi Tilak Chand". The order states that Respondent 2 complainant had filed photocopy of "one" email as per Documents 1 to 34, but the narration and the contents of the email is not adverted to and elucidated.
12. In case of a private complaint, the Magistrate can issue summons when the evidence produced at 1 (2023) 3 SCC 423 16 the pre-summoning stage shows that there is sufficient ground for proceeding against the accused. The material on record should indicate that the ingredients for taking cognizance of an offence and issuing summons to the accused is made out. [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361; Sunil Bharti Mittal v. CBI, (2015) 4 SCC 609 : (2015) 2 SCC (Cri) 687; and Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400. The proviso to Section 200 of the Code is not applicable in the present case.]
13. In the present case, the trial court did not issue summons under Sections 420 and 471IPC, or for that matter, invoke the provision relating to conspiracy under Section 120-BIPC. Although the summoning order dated 19- 7-2018 does not deal with these sections of the IPC, we deem it imperative to examine the ingredients of the aforesaid sections, and Section 406IPC, and whether the allegations made in the complaint attract the penal provisions under the relevant sections of the IPC. We have undertaken this exercise in order to carry out a complete and comprehensive analysis of the factual matrix and the legal provisions, and rule out possibility of an error to the detriment of Respondent 2 complainant.
14. Section 406IPC ["406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."] prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405IPC are satisfied. For Section 406IPC to get attracted, there must be criminal breach of trust in terms of Section 405IPC. [ "405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits 17 "criminal breach of trust".***Illustrations***(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z's direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company's paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.***(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust."(Explanations 1 and 2 and Illustrations (a) and (e) to Section 405IPC are excluded, as they are irrelevant.)]
15. For Section 405IPC to be attracted, the following have to be established:
(a) the accused was entrusted with
property, or entrusted with dominion over
property;
(b) the accused had dishonestly
misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so; and
(c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust 18 is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
16. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion. Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust. [Sudhir Shantilal Mehta v. CBI, (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646]
17. However, in the instant case, materials on record fail to satisfy the ingredients of Section 405IPC. The complaint does not directly refer to the ingredients of Section 405IPC and does not state how and in what manner, on facts, the requirements are satisfied. Pre-summoning evidence is also lacking and suffers on this account. On these aspects, the summoning order is equally quiet, albeit, it states that "a forged demand of Rs 6,37,252.16p had been raised by JIPL, which demand is not due in terms of statements by Shubhankar P. Tomar and Sakshi Tilak Chand". A mere wrong demand or claim would not meet the conditions specified by Section 405IPC in the absence of evidence to establish entrustment, dishonest misappropriation, conversion, use or disposal, which action should be in violation of any direction of law, or legal contract touching the discharge of trust. Hence, even if Respondent 2 complainant is of the opinion that the monetary demand or claim is incorrect and not payable, given the failure to prove the requirements of Section 405IPC, an offence under the same section is not constituted. In the absence of factual allegations which satisfy the ingredients of the offence under Section 405IPC, a mere dispute on monetary demand of Rs 6,37,252.16p, does not attract criminal prosecution under Section 406IPC.
18. In order to apply Section 420IPC, namely, cheating and dishonestly inducing delivery of property, the ingredients of Section 415IPC have to be satisfied. To constitute an offence of cheating under Section 415IPC, a person should be induced, either fraudulently or dishonestly, to deliver any property to any person, or consent that any 19 person shall retain any property. The second class of acts set forth in the section is the intentional inducement of doing or omitting to do anything which the person deceived would not do or omit to do, if she were not so deceived. Thus, the sine qua non of Section 415IPC is "fraudulence", "dishonesty", or "intentional inducement", and the absence of these elements would debase the offence of cheating. [Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 : (2010) 3 SCC (Cri) 1201]
19. Explaining the contours, this Court in Mohd. Ibrahim v. State of Bihar [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 : (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , observed that for the offence of cheating, there should not only be cheating, but as a consequence of such cheating, the accused should also have dishonestly adduced the person deceived to deliver any property to a person; or to make, alter, or destroy, wholly or in part, a valuable security, or anything signed or sealed and which is capable of being converted into a valuable security.
20. In the present case, the ingredients to constitute an offence under Section 420 read with Section 415IPC are absent. The pre-summoning evidence does not disclose and establish the essential ingredients of Section 415IPC. There is no assertion, much less legal evidence, to submit that JIPL had engaged in dishonesty, fraud, or intentional inducement to deliver a property. It is not the case of Respondent 2 complainant that JIPL had tried to deceive them, either by making a false or misleading representation, or by any other action or omission; nor is it their case that JIPL had offered any fraudulent or dishonest inducement to deliver a property. As such, given that the ingredients of Section 415IPC are not satisfied, the offence under Section 420IPC is not made out.
21. Section 471IPC ["471. Using as genuine a forged document or electronic record.--Whoever 20 fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."] is also not attracted. This Section is applicable when a person fraudulently or dishonestly uses as genuine any document or electronic record, which he knows or has reasons to believe to be a forged document or electronic record. This Court in Mohd. Ibrahim [Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751: (2009) 3 SCC (Cri) 929. This Court, in this case, has cautioned that the ratio should not be misunderstood, to record the clarification, which in the present case, in our opinion, is not of any avail and help to Respondent 2 complainant. We respectfully concur with the clarification as well as the ratio explaining Sections 415, 464, etc. IPC.] , has elucidated that the condition precedent of an offence under Section 471IPC is forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 471IPC, it has to be proven that the document was "forged" in terms of Section 470 ["470. Forged document.--A false document [or electronic record] made wholly or in part by forgery is designated "a forged document or electronic record"."] , and "false" in terms of Section 464IPC [ "464. Making a false document.--A person is said to make a false document or false electronic record-- First.--Who dishonestly or fraudulently--(a) makes, signs, seals or executes a document or part of a document;(b) makes or transmits any electronic record or part of any electronic record;(c) affixes any electronic signature on any electronic record;(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,with the intention of causing it to be believed that such document or part of a document, electronic record or *[electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or* Substituted for "digital signature" by Act 10 of 2009, Section 51(e) (w.e.f. 27-10-2009)Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or 21 affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; orThirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration."] .
22. Section 470 lays down that a document is "forged" if there is:
(i) fraudulent or dishonest use of a document as genuine; and
(ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one.
Section 470 defines a "forged document" as a false document made by forgery.
23. As per Section 464IPC, a person is said to have made a "false document":
(i) if he has made or executed a document claiming to be someone else or authorised by someone else;
(ii) if he has altered or tampered a document; or
(iii) if he has obtained a document by practising deception, or from a person not in control of his senses.
24. Unless the document is false and forged in terms of Sections 464 and 470IPC respectively, the requirement of Section 471IPC would not be met.
25. In the counter-affidavit filed by Respondent 2 complainant, it is submitted that a few bills were faked/forged, as the goods were not ordered. Reference is made to balance of Rs 79,752 shown on 30-3-2013, which was objected to and thereupon as per the complaint itself the demand/bill was withdrawn. This would not make the bill a 22 forged document or false document, in terms of Sections 470 and 464IPC. The complaint was made in the year 2017, four years after the bill/claim had been withdrawn, reflecting no criminal intent. The bill was not fake or forged, and at best it could be stated that it was wrongly raised. Moreover, the pre-summoning evidence is silent with regard to this bill and mens rea on the part of the accused is not shown and established. Same would be the position with regard to the bill/invoice of Rs 53,215 which was as per the complaint, sent directly to Manav Rachna International at Faridabad. The bill/invoice is not doubted as "forged" or "false" within the meaning of Sections 470 and 464IPC. No doubt, Adhunik Colour Solutions is mentioned as the buyer, and Manav Rachna International as the consignee, albeit the invoice was issued by JIPL. Pre-summoning evidence does not help and make out a case predicated on this bill/invoice. In the counter-affidavit filed before us, it is alleged that since this bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had Respondent 2 complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as Respondent 2 complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence under Section 471IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre- summoning evidence.
26. For completeness, we must record that the appellants have placed on record the dealership agreement dated 11-4-2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded Respondent 2 complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, Respondent 2 complainant would not be liable, had Manav Rachna International failed to pay. Non- payment is also not alleged in the complaint or the pre- summoning evidence. Reliance on objections vide emails dated 4-7-2014 and 21-7-2014 are of no avail, as they are for the period prior to 31-7-2014, when the bill/invoice was raised.
2327. It is evident from the pre-summoning evidence led and the assertions made in the criminal complaint that the dispute raised by Respondent 2 complainant primarily pertains to settlement of accounts. The allegations are:
(i) goods supplied by JIPL were not as per the requirements and demands of Respondent 2 complainant,
(ii) goods supplied were different from the order placed, and
(iii) goods lying with, and returned by Respondent 2 complainant have not been accounted for.
These assertions, even if assumed to be correct, would not fulfil the requirements of Section 405IPC, or for that matter Sections 420 or 471. The material on record does not reflect and indicate that JIPL indeed had the dishonest/culpable intention for the commission of the alleged offences under the IPC. Unless the ingredients of aforesaid Sections of the IPC are fulfilled, the offence under Section 120-BIPC, for criminal conspiracy, would not be made. In fact, a combined reading of the complaint and the pre-summoning evidence does not disclose any element of criminal conspiracy as per Section 120-AIPC. The complaint discloses a civil dispute and grievance relating to the claim made by JIPL. What is challenged by Respondent 2 complainant is the demand of Rs 6,37,252.16p raised by JIPL as the amount payable till the year ending 2016. This assertion made by JIPL is questioned as incorrect. The demand, even if assumed to be wrong, would not satisfy the ingredients of Section 405, or Sections 420 or 471IPC, so as to justify the summoning order. As noted above, JIPL had filed a criminal case under Section 138 of the NI Act as two cheques for Rs 1,93,776 and Rs 4,99,610 issued by them, on presentation, were dishonoured on account of "insufficient funds".
28. We are, therefore, of the opinion that the assertions made in the complaint and the pre-summoning evidence led by Respondent 2 complainant fail to establish the conditions and incidence of the penal liability set out under Sections 405, 420 and 471IPC, as the allegations pertain to alleged breach of contractual obligations.
24Pertinently, this Court, in a number of cases, has noticed attempts made by parties to invoke jurisdiction of criminal courts, by filing vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims. These attempts are not to be entertained and should be dismissed at the threshold. To avoid prolixity, we would only like to refer to the judgment of this Court in Thermax Ltd. v. K.M. Johny [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650] , as it refers to earlier case laws in copious detail.
29. In Thermax [Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412: (2012) 2 SCC (Cri) 650] , it was pointed out that the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion."
(Emphasis supplied) The Apex Court in the subsequent judgment of USHA CHAKRABORTY v. STATE OF WEST BENGAL2 while considering the entire spectrum of law on civil cases being dressed with a colour of crime has held as follows:
".... .... ....
5. Before adverting to the rival contentions with reference to application under Section 156(3), Cr. P.C. within the parameters, we think it only appropriate to refer to the following decisions of this Court in respect to the scope of exercise of power under Section 482, Cr. P.C. 2 2023 SCC OnLine SC 90 25
6. In Paramjeet Batra v. State of Uttarakhand1, this Court held:--
"12. While exercising its jurisdiction under Section 482 of the Code of the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of the facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
7. In Vesa Holdings Private Limited v. State of Kerala2, it was held that:--
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."
8. In Kapil Aggarwal v. Sanjay Sharma3, this Court held that Section 482 is designed to achieve the purpose of 26 ensuring that criminal proceedings are not permitted to generate into weapons of harassment.
9. In the decision in State of Haryana v. Bhajan Lal, a two Judge Bench of this Court considered the statutory provisions as also the earlier decisions and held as under:--
(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 proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the 27 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.
10. In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra5, a three Judge Bench of this Court laid down the following principles of law:--
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'.
(The rarest of rare cases standard in its application for quashing under Section 482 Cr. P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
28vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr. P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr. P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
29xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr. P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
11. We will now, carefully scan the application filed by the respondent herein which was forwarded for investigation under Section 156(3), Cr. P.C. to consider whether the appellant is justified in taking up the contention that the allegations raised thereunder did not contain the ingredients to constitute the alleged offences or whether the respondent had made out a prima facie case for investigation. In that regard it is worthwhile to take note of the fact that the respondent herein has alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120B, IPC against the appellants. We will refer to the ingredient to constitute such offences to consider the said question.
12. The basic requirements/ingredients to bring home the accusations under the alleged offences are hereunder:--
Offence punishable under Section 323, IPC.
(i) causation of hurt by another person; (ii) that he caused such hurt voluntarily; (iii) that such a case is not covered under Section 334, IPC.
Offence of extortion punishable under
Section 384, IPC.
30
(i) intentionally putting a person in fear of injury to himself or another; (ii) dishonestly inducing a person so put in fear to deliver to any person any property, or valuable security.
Offence of criminal breach of trust punishable under Section 406, IPC.
(i) Entrustment of the property or any dominion over property with accusation; (ii) The person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully causing sufferance to any other person so to do.
Offence punishable under Section 423, IPC.
The essential ingredients to constitute an offence under Section 423, IPC is that the sale deed or deed subjecting an immovable property to a charge was contained a false statement relating to the consideration or relating to the persons or whose use or benefit, it was intended to operate. Thus, it is evident that Section 423, IPC deals with twin specific frauds in the matter of execution of deeds or instruments of transfer or charge, idest, (i) false recital as to consideration or false recital as to the name of beneficiary.
Offence punishable under Section 467, IPC.
Virtually, the offence under Section 467 is an aggravated form of the offence under Section 466, IPC. The essential ingredients to constitute the offence punishable under this Section are (i) commission of forgery; (ii) that such commission of forgery must be in relation to a document purporting to be (a) a valuable 31 property; or (b) a will; or (c) an authority to adopt a son; or (d) which purports to give authority to any person to make or transfer any valuable security; or (e) the receive the principle, interest or dividends thereon; or (f) to receive or deliver any money, movable property or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or (g) an acquittance or receipt for the delivery of any movable property or valuable security.
Offence punishable under Section 468, IPC.
(i) Commission of forgery, (ii) that he did so intending that the document or electronic record forged shall be used for the purpose of cheating.
Offence punishable under Section 420, IPC.
To constitute the said offence there must be deception i.e., the accused must have deceived someone; that by such deception the accused must induce a person (i) to deliver any property; or (ii) to make, alter, destroy a whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable property; or (iii) that the accused must have done so dishonestly. The offence punishable under Section 120B, IPC, to constitute criminal conspiracy, there must be agreement between two or more persons. The agreement should be to do or cause to be done some illegal act, or some act which is not illegal, by illegal means, provided that where the agreement is other than one to commit an offence, the prosecution must further prove; or (iv) that some act besides the agreement was done by or more of the parties in pursuance of it.
13. Now, the question is whether the allegations in the aforesaid application are sufficient to constitute the alleged offences.
3214. We have already extracted the said application filed by the respondent against the appellants in its entirety. At the outset, it is to be noted that in the affidavit accompanying the application, the respondent has stated thus : - "I have not placed this incident before any Court heretofore". In the application, obviously, it is stated that he is one of the trustees of Bagla Sundari Memorial Trust at Basunagar Madhyagram and under the said trust there is a high school by name of Rose Bank Educare and he is the Secretary of the said school. The recital in paragraph 2 of the application filed by the respondent would reveal his case that the accused persons kept him in dark and without giving any information by strengthening the said trust deed illegally got the same registered on 12.07.2016 and removed him from the said post. It is in this context that the aforesaid statement in the aforesaid affidavit assumes relevance. It is the case of the appellants that in regard to his removal from the post of Secretary of the school, the respondent had instituted title suit No. 363 of 2015, praying therein for a declaration that he is the Secretary of the school and the said suit is still pending. Despite the institution of the said suit and its pendency before the First Court of Civil Judge, Junior Division, Barasat the respondent made such a statement in the affidavit. That apart, what is stated in the application is that he is the Secretary of the school, run by the trust.
15. The materials on record pertaining to the said pleadings instituted in the Civil Suit, produced in this proceeding would reveal that the respondent was in fact ousted from the membership of the trust. In the counter affidavit filed in this proceeding, the respondent has virtually admitted the pendency of the suit filed against his removal from the post of Secretary and the trusteeship and its pendency. The factum of passing of adverse orders in the interlocutory applications in the said Civil Suit as also the prima facie finding and conclusion arrived at by the Civil Court that the respondent stands removed 33 from the post of Secretary and also from the trusteeship are also not disputed therein. Then, the question is why would the respondent conceal those relevant aspects? The indisputable and undisputed facts (admitted in the counter-affidavit by the respondent) would reveal the existence of the civil dispute on removal of the respondent from the post of Secretary of the school as also from the trusteeship. Obviously, it can only be taken that since the removal from the office of the Secretary and the trusteeship was the causative incident, he concealed the pendency of the civil suit to cover up the civil nature of the dispute.
16. By non-disclosure the respondent has, in troth, concealed the existence of a pending civil suit between him and the appellants herein before a competent civil court which obviously is the causative incident for the respondent's allegation of perpetration of the aforesaid offences against the appellants. We will deal with it further and also its impact a little later. There cannot be any doubt with respect to the position that in order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr.P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. As noticed hereinbefore, the respondent alleged commission of offences under Sections 323, 384, 406, 423, 467, 468, 420 and 120B, IPC against the appellants. A bare perusal of the said allegation and the ingredients to attract them, as adverted to hereinbefore would reveal that the allegations are vague and they did not carry the essential ingredients to constitute the alleged offences. There is absolutely no allegation in the complaint that the appellants herein had caused hurt on the respondent so also, they did not reveal a case that the appellants had intentionally put the respondent in fear of injury either to himself or another or by putting him under such fear or injury, dishonestly induced him to deliver any property or valuable security. The same is the position with respect to the alleged offences punishable 34 under Sections 406, 423, 467, 468, 420 and 120 B, IPC. The ingredients to attract the alleged offence referred to hereinbefore and the nature of the allegations contained in the application filed by the respondent would undoubtedly make it clear that the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue. In such circumstance when the respondent had already resorted to the available civil remedy and it is pending, going by the decision in Paramjit Batra (supra), the High Court would have quashed the criminal proceedings to prevent the abuse of the process of the Court but for the concealment.
17. In the aforesaid circumstances, coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants. The indisputable facts that the respondent has filed the pending title suit in the year 2015, he got no case that he obtained an interim relief against his removal from the office of Secretary of the School Managing Committee as also the trusteeship, that he filed the stated application for an order for investigation only in April, 2017 together with absence of a case that despite such removal he got a right to get informed of the affairs of the school and also the trust, would only support the said conclusion. For all these reasons, we are of the considered view that this case invites invocation of the power under Section 482 Cr. P.C. to quash the FIR registered based on the direction of the Magistrate Court in the afore-stated application and all further proceeding in pursuance thereof. Also, we have no hesitation to hold that permitting continuance of the criminal proceedings against the appellants in the 35 aforesaid circumstances would result in abuse of the process of Court and also in miscarriage of justice."
(Emphasis supplied) The said judgment is again followed in NARESH KUMAR v. STATE OF KARNATAKA3 wherein the Apex Court has held as follows:
".... .... ....
5. Under these circumstances, we are of the considered view that this is a case where the inherent powers should have been exercised by the High Court under Section 482 of the Criminal Procedure Code as the powers are there to stop the abuse of the process and to secure the ends of justice.
6. In the case of Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673, this Court recognized that although the inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. This is what was held:
"12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court 3 2024 SCC OnLine SC 268 36 should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
(emphasis supplied)
7. Relying upon the decision in Paramjeet Batra (supra), this Court in Randheer Singh v. State of U.P., (2021) 14 SCC 626, observed that criminal proceedings cannot be taken recourse to as a weapon of harassment. In Usha Chakraborty v. State of West Bengal, 2023 SCC OnLine SC 90, relying upon Paramjeet Batra (supra) it was again held that where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure.
8. Essentially, the present dispute between the parties relates to a breach of contract. A mere breach of contract, by one of the parties, would not attract prosecution for criminal offence in every case, as held by this Court in Sarabjit Kaur v. State of Punjab, (2023) 5 SCC 360. Similarly, dealing with the distinction between the offence of cheating and a mere breach of contractual obligations, this Court, in Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293, has held that every breach of contract would not give rise to the offence of cheating, and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise.
9. In the case at hand, the dispute between the parties was not only essentially of a civil nature but in this case the dispute itself stood settled later as we have already discussed above. We see no criminal element here and consequently the case here is nothing but an abuse of the process. We therefore allow the appeal and set aside the order of the High Court dated 02.12.2020. The criminal proceedings arising out of FIR No. 113 of 2017 will hereby stand quashed."
(Emphasis supplied) 37 The Apex Court in NARESH KUMAR (supra) holds that the High Court should have exercised the inherent powers under Section 482 of the Cr.P.C. to stop the abuse of the process of law and to secure ends of justice. The facts therein was also a case which were dressed with a colour of crime and was relating to breach of contract.
12. In the light of the judgments rendered by the Apex Court, it becomes necessary for this Court to interfere in such cases, even if cases are at the stage of investigation, to undo the patent injustice that would ensue, if further proceedings are permitted to continue. The issue, in the case at hand, is purely civil in nature and is dressed with a colour of crime. There may be cases, of situations where allegations may constitute both civil and criminal wrongs. On perusal of the complaint, documents appended to the petition and the documents produced by the complainant, the unmistakable inference would be that the issue at hand is purely civil in nature, as it is arising out of agreements of sale which are pending before the civil Court in O.S.Nos.230 and 231 of 2021 between the same parties. Therefore, I deem it appropriate to 38 consider this to be a case which would fit in the 7 postulates laid down by the Apex court in the case of STATE OF HARYANA v.
BHAJAN LAL4 which is followed by the Apex Court even today.
The Apex Court in the case of BHAJAN LAL has held as follows:
".... .... ....
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 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 4 1992 Supp (1) SCC 335 39 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 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."
(Emphasis supplied)
13. In the light of the preceding analysis, the criminal petition deserves to succeed. For the aforesaid reasons, the following:
40ORDER
(i) Criminal Petition is allowed.
(ii) Crime in Crime No.72 of 2021 pending before the Additional Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru stands quashed.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of considering the case of the petitioners under Section 482 of the Cr.P.C. which would not influence or bind any other proceedings pending between the parties before any other fora.
Consequently, I.A.No.1 of 2022 also stands disposed.
Sd/-
JUDGE bkp CT:MJ