Delhi High Court
Sunil Kapoor & Anr. vs State & Anr. on 6 October, 2009
Author: Mool Chand Garg
Bench: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C.102/2004
% Date of Reserve: 16.09.2009.
Date of Decision: 06.10.2009
SUNIL KAPOOR & ANR. ..... Petitioners
Through: Mr. Mohit Mathur & Mr. V.S.Panwar,
Advocates
Versus
STATE & ANR. ..... Respondents
Through: Ms. Santosh Kohli, APP for the State
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed Yes
to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG,J
1. This order shall dispose of a petition filed under Section 482
Cr.P.C. read with Article 227 of the Constitution of India seeking
quashing of the complaint titled as "Har Raj B. Singh Vs. Sonia Kapoor
& Anr." pending in the Court of M.M., New Delhi and the consequent
proceedings arising therefrom.
2. Briefly stating, the facts giving rise to the filing of the present
petition are as follows:
i) On the basis of an agreement alleged to have been
entered into between the parties for the sale of a plot
Crl.M.C.102/2004 Page 1 of 15
No.18A, J-Block, Sainik Farms measuring 1200 sq. yards
being part of Khasra No.12/24, Village Devli, in 1991 a civil
suit bearing No. 2999/1991 was filed by the complainant
seeking specific performance of the aforesaid agreement
against Sonia Kapoor the wife of the petitioner and Janki
Kapoor the purchaser of the suit property prior to the
execution of the alleged agreement on the allegations that
the petitioner and the other co-accused person were not
executing a sale deed in their favour despite receiving a
sum of Rs.4,00,000/- as per the receipt dated 04.08.1991.
An application for injunction (IA No. 10423/91) filed along
with suit seeking injunction order against Sonia Kapoor for
restraining her from selling or parting with the possession
of the aforesaid property was also dismissed vide order
dated 07.01.1996. In the said order a Learned Single Judge
of this Court had gone through the details of the plaint filed
by the complainant and the written statements filed by
Sonia Kapoor and the second defendant in that case. On
the basis of the averments made therein and the
documents annexed with the pleadings as well as the
report field by the CFSL which categorically stated that the
receipt relied upon by the complainant was a fabricated
document and did not bear the signatures of the second
petitioner, it was observed:
3.Prima facie I am satisfied that the case of defendants 1
and 2 is more probable than the case of the plaintiff.
The plaintiff has failed to establish a prima facie strong
case for injunction. The balance of convenience lies in
favour of the defendants. Therefore, IA No. 10423/91 for
injunction is dismissed. There shall be no order as to
Crl.M.C.102/2004 Page 2 of 15
costs.
Post the matter for admission denial of
documents before the Joint Registrar on 12.05.1996.
Thereafter the matter be listed for framing of issues on
09.07.1996.
ii) In the meanwhile, the complainant filed a complaint
against the petitioners on 22.04.1992 on the same facts
alleging that by violating the terms of the contract of sale
and having appropriated the money given to them to their
own use and having not refunded the same and as such,
they were guilty of committing offences under Section 406
of the IPC. It seems that no orders favouring the
complainant were passed in that complaint which was kept
pending.
iii) A perusal of the record goes to show that this complaint
which was pending before C.K. Chaturvedi, Metropolitan
Magistrate concerned at the relevant time was fixed for
recording complainant's evidence after dismissing his
application under Section 156(3) Cr.P.C. which was moved
in those proceedings and it is thereafter on 14.02.1994
another complaint was filed by the
complainant/respondent No.2 against the petitioners
materially on the same facts again making similar
allegations against the petitioners. This time, the
Magistrate, who dealt with the complaint directed
investigation under Section 156(3) of the Cr.P.C. A perusal
of the complaint which is annexed with the present petition
goes to show that the complainant had not disclosed about
the filing of the first complaint in the second complaint.
Crl.M.C.102/2004 Page 3 of 15
iv) A very important fact which needs notice is that while in
the first complaint it was not stated by the complainant/
second respondent that the payment of Rs. 4 lakhs was
made to petitioner no.1, there is a mention that the
payment was made to petitioner no.2 who also executed a
receipt in this regard, in the second complaint a new fact
has been introduced by the complainant, that is to say, the
payment was received by petitioner No.1 and the receipt
which was given to the complainant was a pre-signed
receipt, that is to say, it was not signed by petitioner No.2
in his presence and thereby, a new case has been sought
to be introduced in the second complaint.
v) On the basis of the second complaint directions were given
to the Police to investigate the matter under Section 156
(3) Cr.P.C. Pursuant thereto, a report was filed stating that
no case was made out against the petitioners. Thereafter,
the Metropolitan Magistrate has also directed the I.O. of
the case to send complete and admitted signatures of the
petitioner to the CFSL. The I.O. complied with the
aforesaid order and he sent the documents to CFSL. As per
the report of CFSL, the petitioner No.2 was completely
exonerated inasmuch as the report said that the receipt
relied upon by the complainant does not bear the
signatures of petitioner No.2 and thus, it was opined that
the said receipt was not a genuine document.
vi) Despite the aforesaid report, the trial Court after recording
Crl.M.C.102/2004 Page 4 of 15
the statement of the complainant and after clubbing both
the complaints together issued summons to the accused
petitioners under Section 420 IPC vide order dated
05.06.1997 and fixed the case for recording pre-charge
evidence. The petitioner moved an application under
Section 203, 340 of the Cr.P.C. as well as under Section
193(1) of the IPC which was not decided by the Magistrate
concerned.
3. It is thereafter the present petition has been filed seeking
quashing of the complaint inter alia on the following grounds:
i) On 04.09.1991 a receipt for Rs.4,00,000/- was allegedly
signed by petitioner No.2. However, a report of CFSL dated
31.10.1994 admittedly exonerates the petitioner No.2 to
the extent that her signatures do not match with the
signatures on the said receipt.
ii) As per the law and the terms of the said receipt, a Suit for
Specific Performance bearing No.2999/1991 was filed by
Respondent No.2 against the petitioners & Smt. Janki Devi
and the Sub-Registrar, Asaf Ali Raod, New Delhi. The said
suit was dismissed with costs to the defendants vide order
dated 28.01.1998 by this Court for want of prosecution by
respondent No.2. No attempt has been made to restore
the said Suit by respondent No.2 till date. An application
filed for the grant of injunction under order 39 R1&2 CPC
has also been dismissed by this Court vide detailed orders
passed by Learned Single Judge of this Court dated
Crl.M.C.102/2004 Page 5 of 15
03.01.1996.
iii) No complaint could be entertained by the trial Court after
the Suit for Specific Performance was dismissed for want of
prosecution. The Agreement to Sell/Receipt allegedly
executed between the parties categorically mention that
only a Suit for Specific Perforamance to be instituted by
the parties in case of default by the either. In this regard,
petitioners have also relied upon a judgment in Narender
Singh Vs. Rejinder Kumar Lamba & Ors. 2007 (III) AD
(Delhi) 544.
iv) It is also alleged that the property in question was not
available for sale on the date on which the alleged
agreement to sale/receipt is stated to have been executed
because on that date the property stood transferred in the
name of Smt. Janki Kapoor the second defendant arrayed
as a party by the complainant in his civil suit which fact
has been taken note of by this Court in the civil
proceedings while dismissing the injunction application as
stated above. Some observation made in the order
dismissing the injunction application which details history
of the litigation between the parties and the conduct of the
complainant is also reproduced hereunder which fact has
been taken note of by a Learned Single Judge of this Court
in the civil proceedings from the pleadings of the parties:
That the present suit is not maintainable in view of the
fact that the plaintiff has not come to this Court with
clean hands and has concealed material facts from this
Hon'ble Court. It is respectfully submitted that the
Crl.M.C.102/2004 Page 6 of 15
present property was brought by the present defendant
from Shri Hukum Singh and Shri Jagdish Singh on 25th
September, 1990. A copy of the sale deed executed
with respect to the said Sale deed executed with respect
to the said property is hit herto annexed and marked as
Annexure-I. Prior to the execution of the said Sale Deed
a Power of Attorney was executed in favour of Shri Sunil
Kapoor who is the husband of the present defendant
No.1. A copy of the said power of attorney is annexed
and marked as Annexure-2. It may be pertinent to state
that at this stage that the present plaintiff was witness
to the said Power of Attorney as would be evident from a
bare perusal of the same. The Defendant is pointing out
this fact only in order to show that the present plaintiff
was aware of the said transaction, which was dated
3.5.1989. The plaintiff is therefore, surreptitiously, with
malafide intentions is trying to give an impression that
the present property in dispute is encumbered in some
way or the other to reduce the price of the said property
and is trying to illegally extract money from the
defendants by filing the present false and frivolous suit.
It is further respectfully, submitted that the falsehood of
the present suit is evident from the fact that the present
defendant had never entered into an agreement to sell
with the present plaintiff as the alleged transaction is
dated 4.9.91. Whereas that the present defendant had
already before the said date sold the property, in dispute
in the present case to the defendant no.2 vide a Sale
Deed which was registered on 11.9.91 much before the
alleged so called sale was made to the present plaintiff
and had handed over possession of the said property on
the said date. It is further respectfully submitted that
the RECEIPT filed by the present plaintiff is totally false,
frivolous and forged and does not bear the signature of
the present defendant. The Plaintiff has committed
perjury by forging the said signature and is liable to be
proceeded against in accordance with law for the same.
The registration of the sale deed with the defendant no.2
was made on 11th September, 1991. It is further
respectfully submitted that the said forger, is evident
from the fact that the defendant no.1 has, at that point
of time signed various documents in which she has also
given her specimen signatures. A copy of the said
documents which would indicate her specimen signature
during the relevant time when the receipt in question
has been aliegeoly signed by her will be filed by the
defendant at the appropriate time. The signature of the
defendant no.1 in the VAKALATNAMA, also be compared
with the signature on the receipt in order to verify the
authenticity of the signature of the receipt."
4. It is, thus, contended that the initiation of criminal complaints,
now clubbed by the learned Magistrate, on the same facts on which
the civil suit was also filed and dismissed is an abuse of process of
Court and continuation of those proceedings tantamount to mis-using
the process of Court inasmuch as the petitioners are compelled to face
the complaint even though they are not guilty of any offence as
Crl.M.C.102/2004 Page 7 of 15
alleged by the complainant. It is, thus, submitted that this Court may
come to the rescue of the petitioners by invoking its inherent powers
under Section 482 Cr.P.C. by dismissing the complaint and quashing
the proceedings arising therefrom in favour of the petitioners.
5. Insofar as the complainant is concerned, despite opportunity
granted he has not cared to file the synopsis. It would not be out of
place to mention that the Metropolitan Magistrate concerned has not
taken note of the facts as stated above which were very much
available on the file of the complaint case and which reflects the ill
intention on the part of the complainant and somehow pressurizing the
petitioner for their illegal demands despite losing in the Civil Court.
6. A perusal of the record goes to show that the case which has
been sought to be pressed in service by the complainant against the
petitioners in the second complaint is an after-thought by making
averments in the second complaint an impression is sought to be
created upon the Court that the money was given to the first petitioner
against a receipt which was already signed though it was not the case
put up in the first complaint. In any event, the purpose of executing
the receipt was to enforce an agreement to sell by way of specific
performance. The said suit was filed but has not been successful.
Thus, even if the facts as disclosed in the second complaint are taken
as correct, the filing of the said complaint in the wake of filing of the
first complaint on different facts results in mis-carriage of justice and
abusing the process of Court. This is more so because the Trial Judge
while issuing summons has not even considered the averments made
in the first complaint which were very material in this case.
Crl.M.C.102/2004 Page 8 of 15
7. The law with regard to quashing of complaint now is well-settled.
In the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335,
the Apex Court was pleased to give illustrative categories where
complaint/FIR can be quashed if the facts would fall in the following
categories i.e.
(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
F.I.R. 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 F.I.R. 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
S. 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.
8. In the facts of the present case, it is apparent that the purpose of
filing of complaint in the year 1992 and again in 1994 after invoking
civil jurisdiction of this Court was only to pressurize the petitioner to
make a settlement with the complainant so as to compel them to
either return the amount allegedly received by them at the time of
Crl.M.C.102/2004 Page 9 of 15
entering into the Agreement to Sell or to sell the property despite there
being no agreement executed between the parties and the receipt was
not even signed by petitioner no.2 as held by the CFSL. In any event,
once the civil suit for specific performance was dismissed the rights of
the parties stand crystallized. Nothing has been brought to the notice
of this Court about steps taken, if any, to revive the suit dismissed in
default. Insofar as the complaints are concerned, admittedly, the
record shows that even the receipt was not signed by the petitioner
and therefore, permitting those complaints to be tried by the
concerned court would naturally be an attempt to help the complainant
to secure money which he is not otherwise entitled to by using the
process of criminal court as a tool for ulterior motives, which is the
seventh illustration given by the Hon'ble Apex Court in Bhajan Lal's
case (supra).
9. In fact the perusal of the two complaints goes to show that the
second complaint filed by the complainant is based upon new facts
which were not there in the first complaint i.e. making a reference to
an unidentified lady being present at the time of handing over the sum
of Rs. 4 lakhs that also to the first petitioner instead of the second
petitioner, who is the owner of the property and allegedly agreed to
sell the property as alleged in the first complaint that also after an
order passed by the Metropolitan Magistrate refusing to direct the
Police to investigate into the matter under Section 156 (3) Cr.P.C. This
goes to show that the process adopted by the complainant was an
abuse of process of Court.
10. In the case of Narender Singh Vs. Rajinder Kumar Lamba & Ors.
Crl.M.C.102/2004 Page 10 of 15
2007 III AD (Delhi) 544 also relied upon by the petitioner (supra) the
law on the subject has been discussed by Learned Single Judge of this
Court by giving reference to various earlier judgments in a similar case
where also on the similar facts a complaint was field by the
complainant under Section 420/406/506/Part-II/448 read with Section
120-B IPC despite filing a civil suit by alleging that there was an
agreement to sell executed by the accused whereby he had agreed to
sell his 2/7 shares in the undivided property to the complainant for a
consideration of Rs. 48.50 lakhs and out of the same the complainant
paid Rs. 3.50 lakhs and the balance was yet to be paid at the time of
execution but which was not paid by the complainant. The suit filed by
the complainant CS-05 (2100/96) for specific performance of the
contract was pending. After filing of the suit the complainant also filed
a complaint as has been done in the present case. The accused then
approached this Court by filing a petition under Section 482 Cr.P.C. and
had contended that for a civil dispute there cannot be a criminal
prosecution. Reference was made to a judgment delivered in the case
of G. Sagar Suri 2001 (supra) and M/s Indian Oil Corp. Vs. M/s NEPC
India Ltd. & Ors 2006 (7) SCALE 286. It was also contended in that
case that in the peculiar facts of that case the proceedings initiated by
way of criminal complaint were uncalled for and unjustified, rather
amounted to abuse of process of Court. The Learned Judge taking into
consideration the facts of that case made the following observations
which are directly applicable to the facts and issues before me:
8... It is to be seen if a 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. 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
Crl.M.C.102/2004 Page 11 of 15
certain principles on the basis of which the 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 other wise
to secure the ends of justice.
9... In State of Karnataka v. E. Muniswamy this Court
said that in the exercise of the wholesome power under
Section 482 of the code of 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.
11... In Chandrapal Singh v. Maharaj Singh, the judgment
started as under (SCC p.467, para 1).
A frustrated landlord after having met his waterloo in the
hierarchy of civil courts, has further enmeshed the
tenant in a frivolous criminal prosecution which prima
facie appears to be an abuse of the process of law. The
facts when stated are so telling that the further
discussion may appear to be superfluous.
This Court said (SCC p.474 para 14)
We see some force in the submission but it is equally
true that a charined and frustrated litigants should not
be permitted to given vent to their frustration by cheaply
invoking jurisdiction of the criminal court. Complainant
herein is an advocate. He lost in both courts in the rent
control proceedings and has now rushed to the criminal
court. This itself speaks volumes. Add to this the fact
that another suit between the parties was pending from
1975. The conclusion is inescapable that invoking the
jurisdiction of the criminal court in this background is an
abuse of the process of law and the High Court rather
glossed over this important fact while declining to
exercise its power under Section 482 Cr.P.C.
Without burdening this judgment with further
case law, as cited by learned Counsel for the petitioner,
purpose would be served by referring to a recent
judgment of the Apex Court in the case of M/s. Indian Oil
Corporation (supra) wherein after taking stock of the
available judgments, the Supreme Court took note of the
growing tendency of converting civil disputes into
criminal cases by levelling frivolous allegations, as would
be clear from the following observations:
10. While on the 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 marriage/ 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
prosecution should be deprecated and discouraged.
It was further observed that:
While no one with a legitimate cause or grievance
Crl.M.C.102/2004 Page 12 of 15
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 CrPC more frequently, where
they discern malice or frivolousness or ulterior motives
on the part of the complainant. Be that as it may.
12. In a case like this, I am of the view that the remedy
for the complainant was to file suit for specific
performance as the dispute is of a civil nature, which he
filed in the year 1996. No subsequent events took place
on the basis of which he could file a criminal complaint
in the year 1999. The allegations of subsequent events,
namely dispossession from the garage, theft, threats
etc. have not been substantiated and the learned ASJ
has himself quashed the process in respect of these
provisions. The matter is, thereforee, purely of civil
nature. This petition is, accordingly, allowed and the
summoning orders issued against the petitioner under
Sections 420/34 IPC are quashed.
No costs.
11. The observations made in the aforesaid judgment are directly
applicable to the facts and issues in the present case. The
complainant first filed a civil suit on same facts seeking specific
performance of the agreement with respect to an alleged agreement to
sell for Rs. 16 lakhs out of which he had only paid Rs. 4 lakhs. The
receipt relied upon has not been found to be genuine. The civil suit
has been dismissed. The complainant in this case not only filed the
civil suit but also filed a complaint in 1992, then again without
disclosing filing of the first complaint also filed a second complaint in
1994 which apparently is a mis-use of the process of Court. It is
surprising that the Magistrate who was trying the second complaint
instead of dismissing the second complaint straightway decided to club
the first complaint with the second complaint. The Judge also failed to
appreciate the report called for under Section 156(3) Cr.P.C. which has
Crl.M.C.102/2004 Page 13 of 15
also not supported the case of the complainant. Moreover, the civil
suit filed by the complainant stands dismissed. The application of
injunction field in that suit also stands dismissed vide detailed order.
12. In fact, it is a case where the complainant is attempting
execution of the agreement to sell just on the basis of part payment
despite the report of FSL which has not found the receipt to be a
genuine document and having failed in the civil proceedings initiated in
1991.
13. In the peculiar facts which have not been contravened by the
respondent/complainant despite opportunity granted to file written
synopsis, it is a fit case where powers possessed by this Court under
Section 482 Cr.P.C. are exercised for the reason that all the three
circumstances which permits this Court to exercise its inherent powers
under Section 482 Cr.P.C. i.e. (i) grave injustice would be caused
against the petitioner if the complaint is allowed to be continued; (ii)
the process of court is being abused; and (iii) the evidence which is
sought to be relied upon is not sufficient which may convict the
petitioner even if the complainant is allowed to go for a full dress trial
in the present case. Reference can also be made in this regard to an
old judgment which still holds good delivered in the case of R.P. Kapur
Vs. State of Punjab, AIR 1960 SC 866 which has been quoted with
approval in a judgment delivered by the Apex Court in Zandu
Pharmaceutical Works Ltd. & Ors. Vs. Mohd. Sharaful Haque and Anr.,
(2005) 1 SCC 122 and State of A.P. Vs. Bajjori Kantian & Anr. AIR 2009
SC 671.
14. In view of the aforesaid, the Criminal Complaint bearing nos.
Crl.M.C.102/2004 Page 14 of 15
55/1/92 dated 20.04.92 & 21/1/94 dated 08.02.94 clubbed together
vide order of the Magistrate dated 12.10.1996 pending in the Court of
Metropolitan Magistrate, New Delhi and the proceedings arising
therefrom are hereby quashed. Petition is allowed. Pending
applications, if any, also stand disposed of. The bail bonds, if any, of
the petitioners would stand discharged. TCR be sent back along with
the copy of the order.
MOOL CHAND GARG, J.
OCTOBER 06, 2009 ag Crl.M.C.102/2004 Page 15 of 15