Rashmi Ashim Sen vs The State Of Madhya Pradesh on 24 January, 2024

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Madhya Pradesh High Court

Rashmi Ashim Sen vs The State Of Madhya Pradesh on 24 January, 2024

Bench: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 24TH OF JANUARY, 2024
M.CR.C. No.12517 of 2022
BETWEEN:-

RASHMI ASHIM SEN W/O SH. ASHIM SEN, AGED
ABOUT 45 YEARS, OCCUPATION - GOVT. SERVICE,
SR. SUB-REGISTRAR, PRESENT ADDRESS : OFFICE OF
SUB-REGISTRAR, PARI BAZAR, BHOPAL DIVISION - 1
(M.P.)
......PETITIONER

(BY SHRI R.N. SINGH - SENIOR ADVOCATE WITH SHRI PRIYANK
UPADHYAY, SHRI AKSHAY PAWAR AND SHRI ANADI KUMAR TAYLOR -
ADVOCATES)
AND

1. STATE OF MADHYA PRADESH THROUGH P.S.
ITARSI, DISTRICT HOSHANGABAD (M.P.)
2. BRIJESH BAMNE S/O SH. RAMESH BAMNE,
AGED ABOUT 38 YEARS, OCCUPATION -
BUSINESS, R/O WARD NO.7, INDIRAPURA, OLD
ITARSI, DISTRICT HOSHANGABAD (M.P.)
3. PANKAJ GOYAL S/O SH. SURESH GOYAL, AGED
ABOUT 33 YEARS, OCCUPATION - BUSINESS,
R/O SAATVI LINE, WARD NO.31, ITARSI,
DISTRICT HOSHANGABAD (M.P.)
4. RAJIV AGRAWAL W/O SH. TRILOKCHAND
AGRAWAL, AGED ABOUT 49 YEARS, R/O
DESHBANDHUPURA, NEAR CENTRAL BANK,
ITARSI, DISTRICT HOSHANGABAD (M.P.)
5. SURESH GOYAL S/O SH. RAMAVTAR GOYAL,
AGED ABOUT 62 YEARS, OCCUPATION -
BUSINESS, R/O SAATVI LINE, WARD NO.31,
ITARSI, DISTRICT HOSHANGABAD (M.P.)
6. NEERAJ KUMAR @ RAJA S/O SH. VIRENDRA
KUMAR PATEL, AGED ABOUT 40 YEARS, R/O
WARD NO.1, OLD ITARSI, DISTRICT
HOSHANGABAD (M.P.)
2

......RESPONDENTS
(SHRI S.K. KASHYAP - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
(SHRI PRAKASH UPADHYAY - ADVOCATE FOR RESPONDENT
NO.2/COMPLAINANT)
(SHRI SURENDRA SINGH - SENIOR ADVOCATE WITH SHRI KAPIL PATHAK
- ADVOCATE FOR RESPONDENT NO.3)
(SHRI AJAY GUPTA - SENIOR ADVOCATE WITH MS. SAKSHI PAWAR -
ADVOCATE FOR RESPONDENT NO.5)
(SHRI SANKALP KOCHAR - ADVOCATE FOR RESPONDENT NO.6)

M.CR.C. No.16838 of 2022
BETWEEN:-

1. SURESH GOEL S/O SHRI RAMAUTAR GOEL,
AGED ABOUT 70 YEARS, OCCUPATION :
BUSINESS, R/O 7TH LANE, WARD NO.32, ITARSI,
DISTRICT HOSHANGABAD, M.P. 461111
2. PANKAJ GOEL S/O SHRI SURESH GOEL, AGED
ABOUT 38 YEARS, OCCUPATION : BUSINESS, R/O
7TH LANE, WARD NO.32, ITARSI, DISTRICT
HOSHANGABAD, M.P. 461111
3. NEERAJ PATEL ALIAS RAJA S/O SHRI
VIRENDRA KUMAR PATEL, AGED ABOUT 40
YEARS, R/O WARD NO.1, OLD ITARSI, DISTRICT
HOSHANGABAD, M.P. 461111
......PETITIONERS

(SHRI AJAY GUPTA - SENIOR ADVOCATE WITH MS. SAKSHI PAWAR -
ADVOCATE FOR PETITIONER NO.1)
(SHRI SURENDRA SINGH - SENIOR ADVOCATE WITH SHRI KAPIL PATHAK
- ADVOCATE FOR PETITIONER NO.2)
(SHRI SANKALP KOCHAR - ADVOCATE FOR PETITIONER NO.3)
AND

SHRI BRIJESH BAMNE S/O SHRI RAMESH BAMNE,
AGED ABOUT 37 YEARS, OCCUPATION - BUSINESS,
R/O WARD NO.7, INDRAPURA, OLD ITARSI, DISTRICT
HOSHANGABAD, M.P. 461111
......RESPONDENT
3

(BY SHRI PRAKASH UPADHYAY - ADVOCATE)
................................................................................................................................................
Reserved on : 17.10.2023
Pronounced on : 24.01.2024
................................................................................................................................................
These petitions having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:

ORDER

Since the facts in both the cases are similar and relief claimed by the petitioners is also same, therefore, for the purpose of convenience and to avoid any conflict in the order, both the cases are being taken up jointly and with the consent of counsel for the parties, analogous hearing has been done.

2. These petitions are under Section 482 of the Code of Criminal Procedure (in short 'CrPC') seeking quashing of order dated 08.01.2022 passed by the Court of Judicial Magistrate First Class, Itarsi, District Hoshangabad, in UNCR No.56/2019 and other consequential proceedings arising out of said order and pending in RCT No.17/2022.

3. In the petition i.e. M.Cr.C. No.16838 of 2022 filed by respondent Nos.3, 5 & 6, they have narrated the facts showing as to how cause of action arose. The petitioner No.3, who is respondent No.6 in M.Cr.C. No.12517 of 2022 acquired four acres of land by virtue of a 'Will' executed in his favour on 10.09.1996 by his grandmother. The said land included 1.83 acres of diverted land, which is situated near Nagpur Road (NH-69) and contained 8 constructed shops over Khasra No.484/26. This was in front portion of the land and 1.89 acres of agricultural land of Khasra No.484/2 was on the back. The registered 'Will' which was not disputed by the parties is available on record as Annexure-A/3 in 4 M.Cr.C. No.16838 of 2022.

4. After hearing the rival contentions of learned counsel for the parties and perusal of record, in the opinion of this Court to answer the issue involved in these cases, the necessary facts are required to be taken note of, which in a nutshell are as under:-

FACTS OF M.CR.C. No.12517 OF 2022 (4.1) That on 01.11.2011, respondent No.6 sold two separate piece of land to respondent Nos.2 and 3 by registered sale-deeds. The sale deed got registered in the office of Sub-Registrar, Itarsi. Respondent Nos.2 and 3 in the month of March, 2013 got their respective title and possession of the land without any objection.

(4.2) At the time of execution of sale-deeds, the present petitioner/Rashmi Ashim Sen was holding the post of Sub-Registrar and thereafter in the month of June, 2013, she got promoted on the next higher post i.e. Senior Sub-Registrar and posted at Bhopal.

(4.3) As pleaded in the petition, respondent No.2/Brijesh Bamne manipulated his sale-deed just to get the location of his land changed.

(4.4) On 12.06.2015, after manipulating the sale-deed, respondent No.2 filed a complaint alleging against the present petitioner that she has committed forgery by manipulating the sale-deed of respondent No.3. In the month of January, 2016, Rajeev Jain, D.I.G. (Registration), was appointed as an enquiry officer and was directed to conduct a preliminary enquiry to ascertain the correctness of the allegations made in the complaint. In the month of April, 2017, Rajeev Jain, as mentioned in the petition, started blackmailing the present petitioner taking undue advantage of the situation.

(4.5) In December, 2017, the present petitioner/Rashmi Ashim Sen preferred a complaint against Rajeev Jain without referring his name about harassment and blackmailing.

(4.6) In January, 2018, the enquiry assigned to Rajeev Jain was taken back and a two-members committee was constituted to conduct preliminary enquiry and to submit report to departmental committee. Although, on 12.02.2018, Rajeev Jain, submitted preliminary enquiry report to the departmental committee on a back date 16.01.2018. As per the averments made in the petition, Rajeev Jain started blackmailing and sexually harassing the present petitioner. The petitioner, therefore, made a complaint to the Head of the Department against Rajeev Jain and enquiry was also conducted against him, in which, he was found guilty and as such, punishment was given to him.

(4.7) In May, 2018, Rajeev Jain supplied his preliminary enquiry report to respondent No.2 and respondent No.2 on 11.05.2018 filed a petition i.e. W.P. No.6770 of 2018 before the High Court, which got dismissed by considering the fact that the enquiry is still pending with the Departmental Committee. Subsequently, respondent No.2 preferred a writ appeal i.e. W.A. No.1096 of 2018, which also got dismissed.

(4.8) Respondent No.2/Brijesh Bamne thereafter filed a private complaint on the basis of preliminary enquiry report submitted by Rajeev Jain against the present petitioner and respondent Nos.3 to 6 under Section 200 of CrPC and the same is pending before the learned Judicial Magistrate First Class, Itarsi. In the said complaint, Rajeev Jain appeared as a witnesses for respondent No.2 and gave statement before the Judicial Magistrate First Class against the present petitioner. As per the petitioner, Rajeev Jain also gave false statement before the Judicial 6 Magistrate First Class, Itarsi.

(4.9) The petitioner appeared through her counsel before the Judicial Magistrate First Class, Itarsi and also filed an application for providing her hearing and also for taking as many as 20 documents on record. Although, the application submitted by the petitioner was rejected vide order dated 12.07.2019. The statement of witnesses recorded in the said complaint case is collectively filed along with the petition. After recording of the statement of witnesses, on 08.01.2022, the Judicial Magistrate First Class registered a case against the present petitioner and others giving reference of the report of Rajeev Jain and also taking note of his statement. Thus, the order passed in the said complaint case is being assailed by the present petitioner in this petition.

5. FACTS OF M.CR.C. No.16838 OF 2022 (5.1) On 23.01.2010, petitioner No.3, namely, Neeraj Patel sold 1 acre of land to one Smt. Gayatri Malhala out of Khasra No.484/26, which is adjacent to NH-69 and later on, on 25.10.2011, he sold 1.98 acres of agricultural land of Khasra No.484/2 which is at the back of the land of complainant/respondent herein, namely, Brijesh Bamne and the remaining part of diverted land, area measuring 0.83 acres of Khasra No.484/26 was sold to Smt. Amrita Goel, who was wife of petitioner No.2/Pankaj Goel. However, she passed away on 02.07.2012.

(5.2) The complainant/respondent herein presented his sale-deed dated 25.10.2011 relating to agricultural land of Khasra No.484/2 which got registered on 16.11.2011 with registration No.1196 for which the Sub- Registrar (petitioner in M.Cr.C. No.12517 of 2022) made an inspection report showing that the land of respondent/complainant is an agricultural 7 land and hence, stamp duty was paid accordingly. Similarly, Smt. Amrita Goel got her diverted land of Khasra No.484/26 registered on 07.12.2011 with registration No.1332.

(5.3) As per the inspection report, it is shown that the land of Smt. Amrita Goel is a diverted land containing commercial shops about 640 sq.ft. in front of NH-69. The land shown to be a diverted land, therefore, the stamp duty on a higher side was paid.

(5.4) The complainant/respondent herein, applied for Fard Batan of his land which he purchased from Neeraj Patel. The land was part of Khasra No.484/27, area measuring 0.796 hectare. On his application, a revenue case was registered vide No.54/A-6(A)/2011-12, in which, complainant/respondent herein, Smt. Gayatri Malhala and some other sharers were party. The Tehsildar called the report from the revenue officer, who in turn, submitted his report to the Tehsildar demonstrating that the land belonging to Khasra No.484/26, area measuring 2 acres is a diverted land and recorded in the name of Neeraj Patel @ Raja S/o Virendra Kumar. It is shown in the report, that the said land was sold, out of which land of Khasra No.484/2 purchased by the complainant/respondent herein, area measuring 0.796 hectare and it was given a new khasra number i.e. Khasra No.484/27. It is also mentioned in the report that out of diverted land, area measuring 0.79 acre (34305 sq.ft.) is already recorded in the name of Smt. Amrita Goel W/o Pankaj Goel. The land area measuring 1 acre is recorded in the name of Smt. Gayatri Malhala W/o Anoop Malhala and two others and remaining land is shown to be a plot. It is further mentioned in the report that the complainant/respondent herein has installed 70-80 cement poles on his land and thereafter the said report contained the field map showing 8 position of Khasra No.484/2 and 484/26 and as per the said field map, it is clear that the land of Smt. Amrita Goel was in front of NH-69, which is at the East. On the North, the land of Smt. Gayatri Malhala W/o Anoop Mahalha shown and in the West, the land of complainant/respondent herein is shown.

(5.5) Thereafter, the Tehsildar in its order dated 31.07.2013 after giving opportunity of hearing to the parties concerned passed an order showing boundaries of the land of complainant/respondent herein and as such, position of the land of the complainant, Smt. Amrita Goel, Smt. Gayatri Malhala and also NH-69 was specified.

(5.6) On record, one agreement dated 14.11.2011 was executed between Smt. Amrita Goel and the complainant/Brijesh Bamne, has been placed in which the parties entered into an agreement containing terms and conditions that both have purchased separate land from Shri Neeraj Patel and they agreed to leave 23 ft. width area which will start from the front of NH-69 situated East of the land and would reach up to the land of the complainant which was on the West, situated at the end of the land of Neeraj Patel and both the parties would use this common passage and would be treated to be as such. The agreement also contained the map which makes the position of the land of Smt. Amrita Goel, Smt. Gayatri Malhala and complainant/Brijesh Bamne very specific and clear.

(5.7) As per the complainant, the document bearing No.1332 which is a copy of sale-deed, by which Smt. Amrita Goel purchased the land, was kept in the office of the-then Deputy Registrar, Itarsi (the petitioner in M.Cr.C. No.12517 of 2022). It is alleged that the copy which was kept in the office of Deputy Registrar was tampered as one of the pages was 9 changed and fabricated whereby the boundaries showing position of the land of Smt. Amrita Goel and complainant Brijesh Bamne were changed and it was done only to get the advantage of hike in price of the land because the land of Smt. Amrita Goel was on the West of NH-69, but by manipulating the document which was kept in the office of Deputy Registrar, Itarsi, the position of the land shown to be in front of NH-69 and the land of the complainant/respondent herein was shown to be in the West and therefore, it is alleged that the accused persons have committed a fraud/forgery, which is a crime and as such, the complaint was made by the complainant/respondent herein under Section 200 of CrPC before the Judicial Magistrate First Class and the same got registered by the impugned order.

(5.8) On the application submitted by the complainant/respondent herein for Fard Batan, an order was passed by the Tehsildar on 31.07.2013. Thereafter, an appeal was also preferred by the complainant/respondent herein against the said order before the Sub Divisional Officer, in which the Sub Divisional Officer has found that the complainant has submitted a copy of sale-deed of the land purchased by him and that sale-deed is manipulated and fabricated, therefore, the Sub Divisional Officer made a complaint to the police for getting the offence registered against the complainant and thereafter the complaint was made under Section 195 r/w Section 340 of CrPC for registration of offence against the complainant/respondent herein under Sections 193, 209, 463, 467 and 471 of IPC and in that case, the persons namely Rashmi Ashim Sen, Pankaj Goel and Neeraj Patel were the witnesses and the case is pending before the Second Additional Sessions Judge, Itarsi.

(5.9) The complainant/respondent herein has also challenged the order of Tehsildar before the Sub Divisional Officer in an appeal and that appeal was dismissed and then he preferred second appeal which also got dismissed. Thereafter, he preferred a revision, which was also dismissed.

(5.10) On a complaint made by the complainant/respondent herein, Rajeev Jain was appointed as an enquiry officer to conduct a preliminary enquiry to ascertain the veracity of allegations made by the complainant/respondent herein against Rashmi Ashim Sen (the-then Sub-Registrar, Itarsi/petitioner in M.Cr.C. No.12517 of 2022). But in the meantime, the enquiry had been withdrawn from Rajeev Jain and that enquiry was transferred to four-member committee and that Committee submitted its report after examining the document i.e. document No.1332 and also other record mentioning therein that nothing has been manipulated with regard to the boundaries of the land containing in the said document and it is also discarded that any change is made in page No.3. Thus, Rashmi Ashim Sen has been given a clean chit and allegations made by the complainant/respondent herein were found without any substance and incorrect.

SUBMISSION OF SHRI R.N. SINGH, SENIOR ADVOCATE

6. Shri R.N. Singh, learned senior counsel appearing for the petitioner in M.Cr.C. No.12517 of 2022 has submitted that the order dated 08.01.2022 registering the offence under Sections 420, 467, 468, 471 and 120-B of IPC and also under Section 477A and 409 of IPC issuing non-bailable warrant is purely illegal as no offence is made out against the present petitioner/Rashmi Ashim Sen because whatever material is available and produced before the Court, do not constitute 11 any case against her.

It is contended by Shri Singh that the allegations made by the complainant/respondent No.2 herein is without any foundation and the enquiry report on which the Court has relied upon is nothing but a malice shown against the present petitioner/Rashmi Ashim Sen by Rajeev Jain because he was personally biased with the present petitioner as she made a complaint against him, in pursuance to which, a departmental enquiry was conducted against him, in which, he suffered a major punishment of compulsory retirement.

As per Shri Singh, the department itself had conducted an enquiry and opined that nothing illegal has been done by the present petitioner/Rashmi Ashim Sen while performing her duties and therefore, registration of complaint and also the offence against her are contrary to law. Shri Singh has further submitted that the Judicial Magistrate First Class did not take into account the report of four-member committee constituted, in which, the present petitioner was given a clean chit and therefore, the impugned order dated 08.01.2022 deserves to be quashed. As per Shri Singh, respondent No.2/Brijesh Bamne is having long criminal record and he manipulated the sale-deed just to bring his undiverted land in front of NH-69 which was actually existing away from the front side of the road i.e. NH-69 and in front side, the land of respondent Nos.3 and 4 is existing and manipulation got done to keep the land of respondent No.2 towards front so as to increase its value.

According to Shri Singh, the present proceeding is nothing but a tool of Rajeev Jain who appeared as an interested witness only to pressurize the present petitioner/Rashmi Ashim Sen to enter into compromise and not to give evidence against the 12 complainant/respondent No.2 herein in the proceeding arising out of Crime No.164/2018 registered at Police Station M.P. Nagar, Bhopal under Sections 354D and 509 of IPC. Shri Singh has contended that Rajeev Jain is using the complainant/respondent No.2 herein as his agent for not only covering his crime but also of the complainant's crime. Shri Singh has also raised an objection that the complaint is also liable to be dismissed as sanction under Section 197 of CrPC has not been obtained. As per Shri Singh, without granting sanction by the competent authority for initiating prosecution against the petitioner, no proceeding can be initiated against her and, therefore, the petitioner sought quashing of FIR.

Shri Singh has further contended that Rajev Jain was produced as witness by the complainant/Brijesh Bamne and he has given false statement in the Court that no enquiry was conducted by the Committee constituted in pursuance to the order of Inspector General of Registration and the Court without giving any weightage to the report of four-members committee, relied upon the statement of Rajeev Jain and its report. Thus, it is clear that Rajeev Jain acted with malice against the present petitioner/Rashmi Ashim Sen because on her complaint, FIR was registered against Rajeev Jain at Police Station M.P. Nagar, Bhopal vide FIR No.164/2018 under Sections 354-D, 503 and 509 of IPC.

It is also contended by Shri Singh that despite removing Rajeev Jain for conducting any enquiry, he has submitted his report before the Court against Rashmi Ashim Sen. He has contended that Rajeev Jain was also punished by M.P. Government Commercial Tax Department on 25.11.2020 and that penalty was of compulsory retirement. Vide order dated 02.12.2020, the Deputy Secretary of the M.P. Government 13 Commercial Tax Department has punished Rajeev Jain withdrawing 5% pension for two years. It is also alleged that the complainant/Brijesh Bamne is a habitual offender and he has filed the complaint only to create pressure upon the present petitioners (in both the petitions) so that they may not give evidence against him in pending sessions trial. As per the averments made in the petition, the complainant/Brijesh Bamne is facing almost 27 criminal cases and he has also suffered a punishment of externment by an order of the District Magistrate, Hoshangabad whereby he had expelled the complainant/Brijesh Bamne from District Hoshangabad and its nearby districts for a period of one year. With the aforesaid facts and circumstances, the counsel for the petitioner has claimed that the complaint is malicious and without any foundation despite that it has been entertained by the impugned order by the trial Court and, therefore, it is liable to be quashed.

In support of his submission, Shri Singh has placed reliance upon the judgments reported in 1992 Supp (1) SCC 335 (State of Haryana v. Bhajan Lal and Ors), 2023 SCC OnLine SC 950 (Mahmood Ali and Others v. State of U.P. and Others), (2016) 12 SCC 87 (Devinder Singh and Ors. v. State of Punjab), (2020) 7 SCC 695 (D. Devraja v. Owais Sabeer Hussain), (2023) 8 SCC 711 (A. Sreenivasa Reddy v. Rakesh Sharma and Another), (2021) 8 SCC 768 (Indra Devi v. State of Rajasthan and Another) and I.L.R. [2018] M.P. 611 (V.B. Singh & ors. v. Rajendra Kumar Gupta & anr.).

SUBMISSION OF SHRI AJAY GUPTA, SENIOR ADVOCATE

7. Shri Ajay Gupta, learned senior advocate appearing on behalf of respondent No.5 in M.Cr.C. No.12517 of 2022 and on behalf of petitioner No.1 in M.Cr.C. No.16838 of 2022 has submitted that Neeraj 14 Patel had acquired 4 acres of land in Mouza/village Itarsi, Tehsil Itarsi, District Hoshangabad by virtue of a registered 'Will' executed by his grand-mother. The diverted land of Khasra No.484/26, area measuring 2 acres was adjacent to NH-69 and the agricultural land belonging to Khasra No.484/2, area measuring 2 acres was existing behind NH-69. He has submitted that Neeraj Patel had sold 0.405 hectares i.e. 1 acre of diverted land out of Khasra No.484/26 to Smt. Gayatri Malhala on a sale consideration of Rs.18.17 lacs through a registered sale-deed.

It is stated that the complainant/Brijesh Bamne had purchased 0.796 hectare of land i.e. 1.98 acres of agricultural land of Khasra No.484/2 from Neeraj Patel on a sale consideration of Rs.45 lacs and submitted the sale-deed before the Sub Registrar Itarsi for registration. On 01.11.2011, the sale-deed was executed between Neeraj Patel and Smt. Amrita Goel and placed before the Sub Registrar Itarsi for registration and it got registered on 07.12.2011. He has further submitted that an agreement was executed between Smt. Amrita Goel and Brijesh Bamne and the sale-deed got registered in which it is shown that the land of Smt. Amrita Goel was adjacent to NH-69 and the agricultural land purchased by Brijesh Bamne was situated behind the land of Smt. Amrita Goel and as such, a provision was made giving 23 ft. width road from the land of Smt. Amrita Goel to reach the land of Brijesh Bamne.

According to Shri Gupta, the stamp paper for the said agreement was purchased by the complainant/Brijesh Bamne and presented before the Sub Registrar in two copies for registration of agreement. The stamp paper of Rs.500 was also purchased by the complainant/Brijesh Bamne on 21.11.2011 signed by both the parties i.e. Brijesh Bamne and Smt. 15 Amrita Goel and presented to be made part of the agreement. On 07.12.2011, the sale-deed of Smt. Amrita Goel registered vide No.1332 and mutation got done by the Tehsildar on the basis of said sale-deed showing boundaries of the land of Brijesh Bamne. On 09.07.2012, Brijesh Bamne had filed a revenue case bearing No.54/A-6(A)/2011-12 before the Tehsildar, Itarsi for Fard Batan of his land and submitted some documents before the Registrar, but surprisingly not the original sale-deed of the land purchased by him. He has submitted that Brijesh Bamne was trying to get fraudulent division in map showing his land to be a diverted land adjacent to NH-69 and of Smt. Gayatri Malhala and Smt. Amrita Goel. The objection was raised by Smt. Gayatri Malhala and others before the Tehsildar. On 30.08.2012, a report was submitted before the Tehsildar in relation to division of the land of Brijesh Bamne in which it was expressed that the land of Smt. Amrit Goel is adjacent to NH-69. On 26.05.2015, FIR got registered against the complainant/Brijesh Bamne and one Bhumendra Singh Markam under Sections 420, 467, 468 and 120-B of IPC and during the investigation, accused Rashmi Ashim Sen, Pankaj Goel and Neeraj Patel were made witnesses and after recording of their statement, charge-sheet was filed. The case is registered as Sessions Trial No.113/2018 and trial is going on before the Second Additional Sessions Judge, Itarsi. The Sub Divisional Officer (Revenue), Itarsi, on 21.12.2015 filed a complaint under Section 340 of CrPC against the complainant/Brijesh Bamne for registration of offence under Sections 193, 209, 463, 467 and 471 of IPC and Sessions Trial No.112/2018 in respect thereto is pending before the Second Additional Sessions Judge, Itarsi. As per the forensic report, on the revers side of page No.3 of sale-deed No.1332 which got registered on 07.12.2011, signature and thumb impression of buyer Smt. Amrita 16 Goel are affixed.

Shri Gupta has contended that a four-member committee after examining the allegations levelled against Rashmi Ashim Sen had submitted its report observing therein that there was no alteration truncation in document No.1332 dated 07.12.2011 and also in the agreement dated 24.12.2011. On 08.01.2022, complainant/Brijesh Bamne filed a complaint case alleging forgery in the sale-deed No.1332 dated 07.12.2011 of Smt. Amrita Goel. On 11.11.2019, the In-charge Police Station, Itarsi had submitted police report mentioning therein that "it has been found to have given an application with an intent not to give evidence against Brijesh Bamne". The Judicial Magistrate First Class, Itarsi registered the said complaint and issued process against Rashmi Ashim Sen, Pankaj Goel, Suresh Goel and Neeraj Patel. According to Shri Gupta, the complaint was made only to create pressure upon the witnesses who are the witnesses of a case in which the complainant/Brijesh Bamne has been made accused so that they may not give evidence against him. He has submitted that the complaint is based upon false and incorrect facts and it is a malicious and frivolous prosecution created by the complainant/Brijesh Bamne just to save himself in the criminal cases registered against him.

Shri Gupta has further submitted that Brijesh Bamne had played mischief and fabricated the documents only to bring his land adjacent to NH-69 whereas from the consideration of land purchased by Smt. Amrita Goel, it is clear that her land was adjacent to NH-69 whereas the land of complainant/Brijesh Bamne was existing behind her land. Brijesh Bamne, according to Shri Gupta, had purchased 1.9 acre of land on a sale consideration of Rs.22.72 lacs per acre and paid full 17 consideration of Rs.45 lacs whereas Smt. Amrita Goel had purchased diverted land i.e. 0.83 acre and paid total consideration of Rs.31.43 lacs and it is clear that the land of Smt. Amrita Goel was a diverted land and located adjacent to NH-69. According to Shri Gupta, the complaint was made by Brijesh Bamne only after registration of case against him by the Sub Divisional Officer (Revenue), Itarsi and also after the complaint made by Smt. Gayatri Malhala and as such, it is clear that the complaint was nothing but a counterblast for creating pressure upon the witnesses who are made accused so that they may enter into compromise or refrain from giving evidence against the complainant/Brijesh Bamne.

To bolster his submission, Shri Gupta has placed reliance upon several judgments reported in 1970 (1) SCC 56 (Kalianna Gounder v. Palani Gounder and another), (2009) 8 SCC 751 (Mohammed Ibrahim and others v. State of Bihar and another), (2005) 3 SCC 670 (Suresh v. Mahadevappa Shivappa Danannava and another), 2023 SCC OnLine SC 90 (Usha Chakraborty and Another v. State of West Bengal and Another) and Mahmood Ali & Ors. v. State of U.P. & Ors. (Criminal Appeal No.2341 of 2023).

SUBMISSION OF SHRI SURENDRA SINGH, SENIOR ADVOCATE

8. Shri Surendra Singh, learned senior advocate appearing for petitioner No.2 in M.Cr.C. No.16838 of 2022 and for respondent No.3 in M.Cr.C. No.12517 of 2022 (Pankaj Goel) has submitted that there is no allegation against Pankaj Goel. The land which is subject matter of the dispute has not been purchased by Pankaj Goel and in fact no allegation is made against him and as such, the prosecution against Pankaj Goel according to Shri Singh, is not made out and it is abuse of process of law. Shri Surendra Singh has pointed out that the land originally belongs 18 to Neeraj Patel/petitioner No.3 in M.Cr.C No.16838 of 2022 and that land came to Neeraj Patel by virtue of a 'Will' executed by his grandmother namely Shanti Bai in his favour and undisputably on the basis of said 'Will' dated 15.03.1992 (Annesxure-A/3), total land area measuring 85842 sq.ft. given to Neeraj Patel with boundaries and some land was shown to be diverted land containing eight shops and some construction over there. He has submitted that spot inspection report is also there i.e. Annexure-A/4 showing agricultural land bearing Khasra No.484/2, area measuring 0.838 hectares, out of which 0.796 hectare did not have any type of construction and at the East side of the land, the land of Smt. Amrita Goel was shown. Shri Singh has submitted that the land of the complainant/Brijesh Bamne, which he purchased by the sale- deed dated 25.10.2011 was an agricultural land and area measuring 0.796 hectares (1.98 acre) shown to be the agricultural land. As per the boundaries shown in the sale-deed, in the East of the said land, the land of Smt. Amrita Goel and Smt. Gayatri Malhala are situated.

Shri Surendra Singh has submitted that as per the spot inspection report and boundaries shown therein, it is clear that the land purchased by the complainant/Brijesh Bamne was an agricultural land. He has pointed out that the land purchased by Smt. Amrita Goel by sale-deed dated 01.11.2011 belongs to Khasra No.484/26, area measuring 0.334 hectare (0.83 acre) and it is a diverted land. It is submitted that from the boundaries of the land of Smt. Amrita Goel, the land of complainant/Brajesh Bamne is shown to be situated in the West. He has further submitted that the agreement executed between the parties i.e. Smt. Amrita Goel and the complainant/Brijesh Bamne, which was a registered agreement, has not been denied and from that document it is clear that there was no access to the land of complainant/Brijesh Bamne 19 and as such, petitioner No.2/Pankaj Goel has given access by leaving 23 ft. width of the land till the end of the land where the land of the complainant situates from NH-69.

Shri Singh has further submitted that neither the 'Will' has been challenged by any of the parties nor the agreement is in dispute and it is a registered agreement showing clear position of the land of the complainant/Brajesh Bamne and petitioner No.2/Pankaj Goel. He has further submitted that the complainant had applied before the Tehsidlar for Batankan as per the sale-deed and the Tehsildar thereafter passed an order on his application on 31.07.2013 (Annexure-A/6) showing boundaries of the land purchased by petitioner No.2/Pankaj Goel and also by the complainant/Brajesh Bamne. As per the said order, it is clear that the land of the complainant was situated at the back of the land of the petitioner No.2. Against the order of Tehsildar, an appeal was preferred before the Sub Divisional Officer, but that appeal got dismissed. Thereafter, second appeal and revision were preferred, but both got dismissed. In a proceeding before the Sub Divisional Officer, the complainant/Brijesh Bamen had submitted a fabricated sale-deed, therefore, the said authority initiated proceeding under Section 340 of CrPC and got the complaint registered against the complainant/Brijesh Bamne, in pursuance to which, the offence was registered against him. Shri Singh has submitted that the total intention of the complainant was nothing but to change the location of his land to somehow establish that his land is adjacent to NH-69 whereas his land is situated on the West of the land of Neeraj Patel. One of the sale-deed was executed by Neeraj Patel in favour of Smt. Amrita Goel (wife of petitioner No.2) and as per the said sale-deed, it is clear that the land of petitioner No.2 is situated away from the land of NH-69 and was diverted land and there was 20 construction over the said land whereas the land of the complainant was an agricultural and undiverted land. Shri Singh has also pointed out that when the 'Will' has not been disputed, the total area which was acquired by Neeraj Patel is also not in dispute, the boundaries of the land as per the agreement executed between the wife of petitioner No.2 and the complainant/Brijesh Bamne is also not disputed, the same clearly shows that petitioner No.2 has given some land for common road to access the land of the complainant. Thus, there was no question and nothing required to be tried so as to prove the allegation that there is some manipulation made in the sale-deed of wife of petitioner No.2. Shri Surendra Singh has drawn attention of this Court towards the order passed by the Sub Divisional Officer in which he has found that the documents produced by the complainant have been fabricated and this was done by the complainant/Brijesh Bamne so as to get the position of his land changed. He has also pointed out that the complainant himself has placed the said agreement for registration and his photograph on the said agreement is also affixed, then how it can be disputed at this juncture. Shri Surendra Singh has further submitted that it is clear that all exercise was being done by the complainant only to create confusion that the land purchased by him is the land adjacent to NH-69 because the land of complainant situates at the back of the land of petitioner No.2 and other purchasers and as such, the value of his land was not as high as the value of the land of petitioner No.2 was determined. Shri Singh has submitted that it is a malicious prosecution and purely of civil nature, therefore, deserves to be set aside. To bolster his submission, Shri Singh has placed reliance upon the judgment of the Supreme Court reported in (2016) 6 SCC 699 (Amanullah and another v. State of Bihar and others).

SUBMISSION OF SHRI SANKALP KOCHAR, ADVOCATE

9. Shri Sankalp Kochare, learned counsel appearing for respondent No.6 in M.Cr.C. No.12517 of 2022 and for respondent No.3 in M.Cr.C. No.16838 of 2022 who has sold the land to the complainant and also to Smt. Amrita Goel and Smt. Gayatri Malhala, has submitted that the complaint case has been registered against the accused persons only on the basis of illegal report of malicious witness Rajeev Jain. He has submitted that the Judicial Magistrate First Class had called for a report from the police, the factual report submitted on 11.11.2019, which is also on record and Police Station Incharge Itarsi had mentioned therein that it has been found to give applications for the purpose of compromising and for not giving evidence in criminal cases pending against the complainant/Brijesh Bamne. The Judicial Magistrate First Class passed the impugned order without considering the factual report submitted by the police and as such, committed a serious mistake.

He has further submitted that from the police report it also reveals that the Inspector General of Registration had withdrawn the inquiry from Rajeev Jain and transferred the same to the four-member committee, in which it was found that there was no alteration in the document No.l332, even though, the Judicial Magistrate First Class has given importance and weightage to the report of Rajeev Jain and also to his evidence declaring him as a crucial witness. Shri Kochar has pointed out that Rajeev Jain in his statement recorded on 22.05.2019 made a false statement about constituting of any committee by the Inspector General of Registration. It is also falsely stated by him that there was no other report in the department contrary to his complaint. Shri Kochar has submitted that it can be easily gathered that making false statement 22 by Rajeev Jain in the Court shows his malicious attitude. He has also pointed out that one of the accused persons namely Rashmi Ashim Sen lodged an FIR against Rajeev Jain at Police Station M.P. Nagar Bhopal and the FIR was registered vide Crime No.0164/2018 under Sections 354-D, 503 and 509 of IPC and this was the reason that Rajeev Jain in connivance with the complainant/Brijesh Bamne, maliciously started enquiry of Rashmi Ashim Sen. The Inspector General of Registration had removed Rajeev Jain from the enquiry and thereafter formed a committee despite that Rajeev Jain has submitted his report against accused No.1 (Rashmi Ashim Sen). It is also pointed out by Shri Kochar that the conduct of Rajeev Jain was so objectionable that he without having any authority sent a confidential letter to Police Station Incharge Itarsi and the Superintendent of Police Hoshangabad for taking action. Shri Kochar has also pointed out that vide letter dated 29.06.2018, the Deputy Secretary, Government of Madhya Pradesh, Commercial Tax Department, Bhopal, had sought clarification from Rajeev Jain regarding irregularities committed by him. It is also pointed out by Shri Kochar that in the said letter, it is mentioned that Rajeev Jain without following the instructions of higher authority sent a letter dated 15.01.2018 asking original file and submitted a report on 16.01.2018 and also sent the enquiry report to the head office on 12.02.2018, it confirms the allegation made against him regarding harassment of Rashmi Ashim Sen.

Shri Kochar has further submitted that Rajev Jain was punished by the Madhya Pradesh Government, Commercial Tax Department vide order dated 25.11.2020 with a penalty of compulsory retirement. The Deputy Secretary Commercial Tax Department, State of Madhya Pradesh vide order dated 02.12.2022 has also punished with the penalty 23 of withdrawing of 5% pension of Rajeev Jain for two years on various charges. Despite that without having any jurisdiction, Rajeev Jain sent a letter to the Superintendent of Police Hoshangabad and the Police Station Incharge Itarsi for taking criminal action against Sub Registrar i.e. Rashmi Ashim Sen. The decision for taking action against Rashmi Ashim Sen was to be taken by the State Government, but without consulting the competent authority, Rajeev Jain directly approached the police for initiating criminal proceeding against Rashmi Ashim Sen. Shri Kochar has further pointed out that the complainant/Brijesh Bamne is a habitual offender and by filing the complaint, he is basically trying to prevent the accused persons who are witnesses in criminal cases i.e. S.T. No.112/2018 and ST. No.113/2018 pending against the complainant, for giving evidence against him. Shri Kochar has drawn attention of this Court towards the criminal mentality of the complainant saying that 27 criminal cases are registered against him.

It is also pointed out by Shri Kochar that a case against the complainant/Brijesh Bamne for producing the forged and fabricated sale-deed before the Sub Divisional Officer in a pending appeal has also been registered under Section 340 of CrPC and in pursuance to which, the offence registered against the complainant under Sections 193, 209, 463, 467 and 471 of IPC and that case is being tried by the trial Court in S.T. No.112/2018 at Itarsi. As per Shri Kochar, the complainant had filed a writ petition before the High Court i.e. W.P. No.8770 of 2018 seeking direction for registration of FIR on the basis of letter dated 12.02.2018 sent by Rajeev Jain to Police Station Incharge Itarsi, but that petition got dismissed by the Court saying that two-member committee has already been constituted for inquiring about the issue and therefore, the petition was dismissed. He has also submitted that the said order of 24 the High Court was very much before the Judicial Magistrate First Class, but ignoring the said aspect, a complaint was registered only on the basis of report of Rajeev Jain. Shri Kochar has further pointed out that a civil suit was also presented by the complainant/Brijesh Bamne which was registered as RCS/10-A/2015 pending before the Additional District Judge Itarsi claiming that his land be declared to be situated adjacent to NH-69 and also claiming that the sale-deed dated 07.12.2011 bearing number 1332 of Smt. Amrita Goel be declared void and as such, it is clear that the civil case has been converted into criminal case. He has further submitted that the complaint case is nothing but a pressure tactics adopted by the complainant as no substantive material placed by the complainant before the Court and the same is only on the basis of presumption allegation made. As per Shri Kochar, the agreement dated 24.11.2011, it is clear that the land of complainant is located behind the diverted land of Smt. Amrita Goel and registered agreement is nothing but an admission of complainant himself. He has also pointed out that the value of the land paid shows that the land purchased by Smt. Amrita Goel was adjacent to NH-6. The complainant had purchased the land area measuring 1.98 acres by paying Rs.45 lacs and Smt. Amrita Goel had purchased the land area measuring 0.83 acre by paying Rs.31.43 lacs.

To reinforce his submission, Shri Kochar has placed reliance upon various judgments viz. reported in 2021 SCC OnLine 976 (Mitesh Kumar J. Sha v. State of Karnataka & Others), 2021 SCC OnLine SC 1007 (Jaswant Singh v. State of Punjab & Another), 2021 SCC OnLine SC 942 (Randheer Singh v. State of UP & Others), (2020) 16 SCC 714 (Govind Prasad Kejriwal v. State of Bihar & Another), (2019) 11 SCC 706 (Anand Kumar Mohatta and Another v. State 25 (NCT of Delhi), Department of Home & Another), (2019) 20 SCC 744 (State of UP v. Ravi Prakash Shrivastav & ors.), (2019) 9 SCC 148 (Satishchandra Ratanlal Shah v. State of Gujarat and Another), (2014) 10 SCC 663 (Binod Kumar & Others. v. State of Bihar and Another), (2013) 11 SCC 673 (Paramjeet Batra v. State of Uttarakhand and Others), (2011) 7 SCC 59 (Joseph Salvaraj A. v. State of Gujarat and Others), (2007) 12 SCC 1 (Inder Mohan Goswami and Another v. State of Uttaranchal and Others), (2005) 10 SCC 336 (Uma Shankar Gopalika v. State of Bihar and Another), (2005) 10 SCC 228 (Anil Mahajan v. Bhor Industries Ltd. And Another), (2007) 14 SCC 776 (All Cargo Movers (India) Private Limited and Others v. Dhanesh Badarmal Jain & Another), (2019) 16 SCC 739 (Prof. R.K. Vijaysarathy and Another v. Sudha Seetharam and Another) and (2006) 6 SCC 736 (Indian Oil Corpn. v. NEPC India Ltd. & Others) SUBMISSION OF SHRI PRAKASH UPADHYAY, ADVOCATE

10. Per contra, Shri Prakash Upadhyay, learned counsel appearing for the complainant/Brijesh Bamne has opposed the submissions made by learned counsel for the petitioners and submitted that the petitioners are trying to establish that the case of the complainant is frivolous, vexatious and malicious and their contention is based upon various facts and documents available on record. But as per Shri Upadhyay, this is not the proper stage for the Court to look into the factual aspect of the matter or to examine the correctness of documents and other circumstances on which the petitioners are relying upon. He has further submitted that it is not expected from this Court to conduct a mini trial so as to reach a conclusion about the correctness of the documents 26 produced by the parties. The documents produced by the parties are required to be proved during the course of trial and judicial notice cannot be taken at this stage. As per Shri Upadhyay, the statements recorded by the Court under Sections 200 and 202 of CrPC are sufficient to take cognizance in the matter and the petitioners would get opportunity to cross-examine the witnesses, but the Court cannot go beyond that. Shri Upadhyay has raised preliminary objection with regard to maintainability of the petitions.

Shri Upadhyay has further submitted that the case of respondent No.2/complainant is that there are so many manipulations made in number of documents in connivance with accused Rashmi Ashim Sen in the land of complainant which was adjacent to NH-69 but shifted towards back. Shri Upadhyay has drawn attention of this Court towards the document i.e. Annexure-A/7 of M.Cr.C. No.16838 of 2022 saying that the same is correct and showing boundaries and as per the same, NH-69 is towards the East of purchased land. According to him, Annexure-A/7 is a copy of original sale-deed but with the conspiracy of one of the dead employees of the Registry Department, the boundaries got changed just to bring the property of Smt. Amrita Goel and Smt. Gayatri Malahala towards the East of the said property. Shri Upadhyay has submitted that the allegations made by the complainant/respondent No.2 herein (Brijesh Bamne) requires trial to ascertain the said fact. He has also pointed out that in page No.138 of M.Cr.C. No.16838 of 2022, the name of Smt. Amrita Goel is hand written with fluid, which is an indication of manipulation in that document. He has submitted that the sale-deed executed in favour of the complainant/Brijesh Bamne was presented on 25.10.2011 for registration, but till date Smt. Amrita Goel was not the owner of any of the adjoining plots, as such, the entry made 27 in the said sale-deed appears to be fabricated and it creates doubt. Shri Upadhyay during his argument has drawn attention of this Court towards number of discrepancies in the documents and tried to establish when apparently those discrepancies are there, then at this stage, it is difficult to ascertain whether allegations levelled against the petitioners/accused are correct or they are false. He has also submitted that so far as the sanction for prosecution is concerned, it is not required because it is a case of committing cheating and forgery and it does not come within the scope of official duty of the petitioner/Rashmi Ashim Sen.

In support of his submission, Shri Upadhyay has placed reliance upon a judgment reported in 2023 SCC OnLine SC 379 (Central Bureau Investigation v. Aryan Singh) saying that the Supreme Court in the said case has observed that while adjudicating upon the quashing of FIR, the appreciation of facts and their credibility cannot be done, even malice on factual aspect requires adjudication.

He has further placed reliance upon a case reported in (2013) 10 SCC 581 (Vinod Raghuvanshi v. Ajay Arora and others) in which the Supreme Court has observed that for taking cognizance in the matter, prima facie satisfaction is required.

Likewise, in a case reported in (2014) 3 SCC 389 (Vijayander Kumar and others v. State of Rajasthan and another), the Supreme Court has also observed that the defence document cannot be appreciated at the time of taking cognizance.

Further, in a case reported in (1989) 2 SCC 132 (M/s India Carat Pvt. Ltd. v. State of Karnataka and Another), the Supreme Court has 28 observed that even the police closure report do not preclude complainant to proceed with case.

Shri Upadhyay has contended that even in view of the law laid down by the Supreme Court in a case reported in (2016) 13 SCC 44 (Punjab State Warehousing Corporation v. Bhushan Chander and Another), prosecution sanction is not required.

CONSIDERATION

11. After hearing the rival submissions made by learned counsel for the parties and perusal of record, this Court is of the opinion that the dispute as has been sketched before this Court is that the complainant is trying to establish that by committing fraud and manipulation in the sale-deed of Smt. Amrita Goel, the land purchased by her is shown to be situated adjacent to NH-69 and the accused persons have tried to establish that the complainant by making false allegations is trying to establish that his land situates adjacent to NH-69, but the petitioner No.2 by manipulating his sale-deed has tried to establish that the land purchased by him situates adjacent to NH-69.

12. From the submission made by Shri Surendra Singh, learned senior counsel appearing for petitioner No.2/Pankaj Goel, it is clear that Neeraj Patel sold the land not only to wife of petitioner No.2 but also to complainant/Brijesh Bamne. The 'Will' dated 15.03.1992 (Annexure-A/3) is the source of acquiring the land by Neeraj Patel and that 'Will', till date is not disputed. The total land given to Neeraj Patel was 85824 sq.ft. belonging to Khasra Nos.484/2 and 484/26. The land purchased by the complainant/Brijesh Bamne as per his sale-deed is an agricultural land. The spot inspection report (Annexure-A/4) also 29 contained that over the land purchased by the complainant, area measuring 0.796 hectare, there was no construction and per the boundaries on the East of the land of complainant, the land of Smt. Amrita Goel is situated. The sale-deed of Smt. Amrita Goel dated 07.12.2011 is also available on record and per boundaries shown therein, on the West of the land of Smt. Amrita Goel, the land of complainant/Brijesh Bamne situates. The spot inspection report also reveals the location of the land of Smt. Amrita Goel and also of the complainant/Brijesh Bamne. The sale-deed of Smt. Amrita Goel contained that she purchased the "diverted land". Further, a registered agreement dated 14.11.2014 is also available on record which clearly reveals that the same was executed between Smt. Amrita Goel and Brijesh Bamne and that agreement was placed by Brijesh Bamne for registration. Photographs of Smt. Amrita Goel and Brijesh Bamne are also affixed on the said agreement. The agreement also contained the boundaries of the land, clause-2 is very specific, which reads as under:-

";g fd izFke i{k ,oa f}rh; i{k us i`Fkd&i`Fkd fodz; i= }kjk mDr Hkwfe uhjt dqekj mQZ jktk vk- ohjsUnz dq- iVsy ls dz; dh gS ,oa iFke ,oa f}rh; i{k bl ckr ij lger gS fd izFke i{k] f}rh; i{k dh iwoZ fn'k ,u-,p-69 ls f}rh; i{k ds jdos rd vkus tkus ds fy, 23 QhV dk jkLrk NksM+sxk] ftls nksuks gh i{k fufoZokn :i ds mi;ksx] miHkksx djrs jgsaxs] mDr jkLrk nksuksa i{kksa dk futh jkLrk gksxkA"

13. The aforesaid clause makes it clear that party No.1 i.e. Smt. Amrita Goel has given up her right over the land having 23 ft. width starts from NH-69 till the land of party No.2 i.e. Brijesh Bamne for passage. It makes it clear that the land of Smt. Amrita Goel was situated adjacent to NH-69 and there was no access for the complainant/Brijesh Bamne to reach his land and as such, by way of agreement, Smt. Amrita Goel agreed to give passage to the complainant/Brijesh Bamne so that he may have access to his land. The location of the land and other things 30 are also clear that on the application for Batankan moved by the complainant/Brijesh Bamne, the Tehsildar passed an order on 31.07.2013 showing boundaries of the land of the complainant. The appellate authority i.e. Sub Divisional Officer in an appeal preferred by the complainant not only dismissed the appeal but also noticed that the complainant has produced the forged/fabricated sale-deed so as to change the location of his land, proceeding under Section 340 of CrPC was initiated against the complainant, the revenue authority got registered the FIR against the complainant and sessions trial in respect of the said offence is still pending. As per Shri Surendra Singh, senior advocate, petitioner No.2/Pankaj Goel has nothing to do with the same but only because he was one of the witnesses of the sale-deed of the land purchased from Neeraj Patel, he cannot be made accused. From the statement made by the parties and on the basis of material available on record, prima facie I am also of the opinion that the submission made by Shri Singh having substance and no dispute subsist about the location of the land of Smt. Amrita Goel, and petitioner Nos.1 and 2 had no need to make any attempt for getting the location of their land changed.

14. As far as the stand taken by main accused Rashmi Ashim Sen is concerned, it is clear that a committee was constituted to ascertain the correctness of allegations made by the complainant/Brijesh Bamne in his complaint and that committee has submitted its report observing therein that nothing illegal has been done by Rashmi Ashim Sen. The police has also made an enquiry and also found that there is no substance in the allegations made by the complainant alleging that a copy of sale-deed which was kept in the office of Registrar has been manipulated. There is no material available on record indicating that Rashmi Ashim Sen has manipulated the documents which were 31 available in her office. On the contrary, from the available facts, it is the complainant who produced the fabricated sale-deed in a pending appeal before the Sub Divisional Officer and that illegality came to the notice of that revenue officer, therefore, he got the offence registered against the complainant/Brijesh Bamne. Apparently, the enquiry got done by the skilled person familiar with the procedure of the department so as to ascertain the allegation and they submitted their report giving clean chit to the accused (petitioners). Even otherwise, on the basis of available facts, prima facie it is clear that there was no need for Rashmi Ashim Sen to manipulate the sale-deed of Smt. Amrita Goel because the things are otherwise indicating that the land of Smt. Amrita Goel situates adjacent to NH-69. On the contrary, the land of the complainant/Brijesh Bamne was behind her land.

It is also clear that the basic foundation of registration of offence is the statement of Rajeev Jain, but from the record and the facts came on record, it is clear that Rajeev Jain was biased and acted against accused Rashmi Ashim Sen because she got the FIR lodged against him and on her complaint, the department conducted an enquiry in which Rajeev Jain was punished. It is also clear that in the mid of the enquiry, Rajeev Jain was removed from the said enquiry and enquiry was assigned to a committee consisting of two members, then Rajeev Jain should not have acted further but he completed the report and sent the same to the head office and without any authority directly approached the police asking registration of FIR against Rashmi Ashim Sen. The conduct of Rajeev Jain was apparently suspicious and clearly indicating that he was acting against Rashmi Ashim Sen.

15. The land in fact belongs to Neeraj Patel, who executed different 32 sale-deeds in favour of complainant/Brijesh Bamne, Smt. Amrita Goel and Gayatri Malhala and he is the best person to know the exact location of the land sold by him. One affidavit of Neeraj Patel is available on record at page No.440 of objection submitted by respondent No.2/complainant in M.Cr.C. No.12517 of 2022 in which he has very categorically admitted that the land bearing Khasra No.484/26, area measuring 0.83 acre is situated adjacent to NH-69 and the land of complainant/Brijesh Bamne is situated behind the said land. The affidavit further contained that in the sale-deed of the land sold to complainant/Brijesh Bamne, the boundaries and the location of the land of Smt. Amrita Goel has also been shown. The affidavit further contained that Neeraj Patel executed a sale-deed in favour of the complainant/Brijesh Bamne in which he has shown boundaries and as per the same, the land of Smt. Amrit Goel was on the East of the land, but later on, the said sale-deed manipulated and towards the East, NH-69 and a Well were shown.

It is also not in dispute that Rajeev Jain was removed from the enquiry despite that he acted arbitrarily and with bias intentions, he appeared in favour of the complainant/Brijesh Bamne making statement before the Court and that is the foundation of registration of complaint. From the order of Judicial Magistrate First Class, it can be easily seen that the said authority did not consider the fact that the enquiry committee has given report in favour of Rashmi Ashim Sen. It is also clear that Rajeev Jain was punished on the complaint made by Rashmi Ashim Sen and by way of punishment, he was compulsorily retired but despite that he was trying his level best so as to get the offence registered against Rashmi Ashim Sen. It is also not in dispute that in the case registered against the complainant/Brijesh Bamne, the present 33 accused persons are the witnesses and the documents available on record prima facie indicating that the land of complainant was an agricultural land, undiverted and situated at the back of the land of Smt. Amrita Goel, not adjacent to NH-69. In such circumstances, only on the basis of presumption without there being any material available on record that Rashmi Ashim Sen has manipulated the document which was kept in the office of Registration, the prosecution cannot be initiated.

16. Although, Shri Upadhyay has tried to establish on the basis of documents and the statement of the witnesses that the allegation made against accused persons are subject to enquiry and the correctness of the allegations made against the accused persons cannot be examined at this stage by the Court in a petition preferred under Section 482 of CrPC for quashing of complaint. But at the same time the Court has to see whether there is any substance in the complaint made by the accused or what was the intention for initiating prosecution and further to see the nature of crime. Thus, this Court has no hesitation to say that the dispute as has been raised by the complainant is purely of civil nature and the allegations made against Rashmi Ashim Sen that she has misused her power fabricating the copy of sale-deed available with the office of Registry, having no material. On the contrary, the report of enquiry committee to ascertain the allegations made, is in favour of the petitioners.

CASES RELIED          UPON      BY SHRI       R.N.    SINGH,     SENIOR
ADVOCATE

17. The Supreme Court in case of A. Sreenivasa Reddy (supra) has also observed as under:-

"61. There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197CrPC, on the other. In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197CrPC depends on the factual aspects. The test in the latter case is of the "nexus" between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197CrPC on such reasoning. The "safe and sure test", is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted "in excess of his duty", but if there is a "reasonable connection" between the impugned act and the performance of the official duty, the protective umbrella of Section 197CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts."

18. Further, in case of Mahmood Ali (supra), the Supreme Court has held thus:-

"12. We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra).

13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious 35 proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

19. This Court in case of V.B. Singh (supra) has observed as under:-

"7. In this case, it is glaring that the learned court below has taken cognizance of the offences in the absence of a sanction under section 197 Cr.P.C. notwithstanding an admission by the Respondent No. 1 himself in the complaint filed by him that the petitioners herein were guilty of a malafide exercise of their powers which resulted in the destruction of his house. Once it became apparent to the learned court below that the complainant himself has stated that the petitioners had acted in the exercise of their powers, the allegedly malafide intent with which the same was exercised does not legitimize the taking of cognizance in the absence of a sanction under section 197 Cr.P.C. Once it becomes apparent that the actus reus attributable to the petitioners was on account of the powers vested upon them under the law and by authority of the State and upon a nexus between their actions and their official duties becoming apparent ex facie, the learned Magistrate ought not to have proceeded any further without the appropriate sanction from the sanctioning authority. Since it was not disputed by the complainant himself that the petitioners were acting in discharge of their official powers, the learned trial court ought to have directed the complainant to secure sanction under section 197 Cr.P.C. and thereafter present the complaint.

* * *

11. Thus, on the basis of what has been argued herein above, and the fair admission by the Ld. Counsel for Respondent No. 1 that the complaint as a whole does not level a single allegation which is specific to the petitioners, the same being omnibus in nature and the fact that sanction under section 197 Cr.P.C. was essential in this case as the preponderant material on record discloses that the 36 Petitioners were acting in their official capacity and lastly, the entire complaint and the evidence under sections 200 and 201 Cr.P.C. having grossly failed to disclose the commission of any offence by the petitioners herein, compliant case no. 2862/2006 pending before the court of learned JMFC Rewa against the petitioners is quashed. "

20. Likewise in a case of Indra Devi (supra), the Supreme Court has held as under:-

"10. We have given our thought to the submissions of the learned counsel for the parties. Section 197 CrPC seeks to protect an officer from unnecessary harassment, who is accused of an offence committed while acting or purporting to act in the discharge of his official duties and, thus, prohibits the court from taking cognizance of such offence except with the previous sanction of the competent authority. Public servants have been treated as a special category in order to protect them from malicious or vexatious prosecution. At the same time, the shield cannot protect corrupt officers and the provisions must be construed in such a manner as to advance the cause of honesty, justice and good governance. (See Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .) The alleged indulgence of the officers in cheating, fabrication of records or misappropriation cannot be said to be in discharge of their official duty. However, such sanction is necessary if the offence alleged against the public servant is committed by him "while acting or purporting to act in the discharge of his official duty" and in order to find out whether the alleged offence is committed "while acting or purporting to act in the discharge of his official duty", the yardstick to be followed is to form a prima facie view whether the act of omission for which the accused was charged had a reasonable connection with the discharge of his duties. (See State of Maharashtra v. Budhikota Subbarao [State of Maharashtra v. Budhikota Subbarao, (1993) 3 SCC 339 : 1993 SCC (Cri) 901] .) The real question, therefore, is whether the act committed is directly concerned with the official duty.

* * *

12. We are, thus, not able to appreciate why a similar protection ought not to be granted to Respondent 2 as was done in the case of the other two officials by the trial court and High Court, respectively. The sanction from the competent authority would be required to take cognizance and no sanction had been obtained in respect of any of the officers. It is in view thereof that in respect of the other two officers, the proceedings were quashed and that is 37 what the High Court has directed in the present case as well."

THE JUDGMENTS RELIED UPON BY SHRI SURENDRA SINGH, SENIOR ADVOCATE

21. As per the submissions made by Shri Surendra Singh, senior advocate appearing for petitioner No.2/Pankaj Goel and reliance placed by him, the Supreme Court in a case reported in (2016) 6 SCC 699 (Amanullah and another v. State of Bihar and others) has considered the parameters to be considered by the High Court at the time of exercising the power provided under Section 482 of CrPC and the stage when cognizance can be taken. The relevant paragraphs are as under:-

"26. The proposition of law relating to Section 482 CrPC has been elaborately dealt with by this Court in Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . The relevant paras 102 and 103 of which read thus : (SCC pp. 378-79) "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 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 38 Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

27. Further, this Court in Rajiv Thapar v. Madan Lal Kapoor [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] has laid down certain parameters to be followed by the High Court while exercising its inherent power under Section 482 CrPC, in 39 the following manner : (SCC pp. 347-49, paras 29-30) "29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30.Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:

30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?

30.2. Step two : whether the material relied upon by the 40 accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant;

and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4. Step four : whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."

(emphasis supplied)"

22. He has further submitted that the Supreme Court in a case reported in AIR 2010 SC 840 (Parminder Kaur v. State U.P. & Anr.), has observed under:-

"14. The only allegation which appears from the first information report is that the appellant altered the date from "6-5- 2002" to "16-5-2002" and "7-5-2002" to "17-5-2002" and "27-5- 2002". It seems from the certified copy that though she had applied for the certified copies of the revenue records on 6-5-2002 and the same were made available to her on 7-5-2002, she altered those dates in the copies filed by her in the court to "16-5-2002"

and "17-5-2002" as also "27-5-2002". This is all the forgery which has been complained of by Respondent 2 in the aforementioned FIR. It is only on this basis that it is suggested that the said civil suits were filed on 27-5-2002 and a false affidavit was sworn by the appellant. It is pointed out that in that affidavit also she had given the wrong dates. The only basis for this allegation is in the following words:

"This interpolation of dates is apparent because from 15-5- 41 2002 to 30-5-2002 no one inspected the records of Khata No. 40 of Village Beehat. That in the letter dated 26-9-2002 it has been made clear that the certified copy with regard to Khata No. 40 situated in Village Beehat Khatauni 1-4-2002 to 1-4-2007 was got ready on 7-5-2002 itself."

It is then contended that:

"Smt Parminder Kaur in order to cause loss to the applicant interpolated the dates of revenue records and thus the documents are forged and the same were produced in the court in order to defraud the court and false affidavit has been filed in the court which is a crime...."

(emphasis supplied) We specifically put a query to Shri Das, learned Senior Advocate appearing on behalf of the State of U.P. as also to the learned Senior Counsel for Respondent 2 to show us as to what advantage would the appellant be put to by changing the dates from "6" to "16" and "7" to "17" or as the case may be "27" and how loss would be caused to Respondent 2. Learned counsel were not able to answer the question. At one point of time in the innumerable affidavits which were filed before us and as also in the written submissions on behalf of Respondent 2 it is asserted that this has been done by the appellant to save the limitation. We again asked the learned counsel as to how the limitation could be saved by adding "1" before the figure "6-5-2002" and "7-5-2002"

to which the learned counsel had no answer and indeed they could not have any such answer. 28. The case of the appellant throughout appears to be that she did not do it. Firstly, she contends that she did not file the civil suit on 27-5-2002 because she was not present at the time of filing of the civil suit on 27-5- 2002 and that the civil suits appear to have been filed through her counsel Shri O.P. Gupta. She had made very serious allegations against Shri Gupta. We will not go into those allegations as we are not called upon to do so nor do we find it necessary to do so. However, the fact remains that even if we presume that somebody interpolated the records by adding the figure "1" and even if it is presumed that the appellant did so, still it does not become a forged document.

x x x

17. The next section is Section 468 IPC which reads as under:

"468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the document or electronic record forged 42 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."

This is the aggravated form of forgery which is punishable under Section 465 and is defined under Section 464 IPC. Section 464 speaks of making a false document. The section reads as under:

"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 digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature.

With the intention of causing it to be believed that such document or part of a document, electronic record or digital 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 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 affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital 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."

The first clause suggests that a person makes a false document if he--

(1) dishonestly or fraudulently makes, signs, seals or 43 executes a document, or part of a document, or makes any mark denoting the execution of a document; and (2) does as above with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed,

(a) by or by the authority of a person by whom or by whose authority it was not so made, signed, sealed or executed, or

(b) at a time at which he knows that it was not made, signed, sealed or executed;

It is not the case here. To attract the second clause of Section 464 there has to be alteration of document dishonestly and fraudulently. So in order to attract clause "Secondly" if the document is to be altered it has to be for some gain or with such objective on the part of the accused. Merely changing a document does not make it a false document. Therefore, presuming that the figure "1" was added as was done in this case, it cannot be said that the document became false for the simple reason that the appellant had nothing to gain from the same. She was not going to save the bar of limitation."

THE JUDGMENTS RELIED UPON BY SHRI AJAY GUPTA, SENIOR ADVOCATE

23. Further, in case of Mahmood Ali (supra), the Supreme Court has held thus:-

"12. We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra).

13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would 44 ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

24. The Supreme Court further in case of Usha Chakraborty (supra) has observed as under:-

"13. Now, the question is whether the allegations in the aforesaid application are sufficient to constitute the alleged offences.

* * *

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 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 45 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 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 46 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 aforesaid circumstances would result in abuse of the process of Court and also in miscarriage of justice."

25. The Supreme Court in case of Suresh (supra) has observed as under:-

"10. We have also perused Annexures P-1 to P-3 which are copies of the pleadings/documents which form part of the records of the case in the High Court against whose order leave to appeal was sought for in this appeal. We have carefully perused the order passed by the High Court. The High Court, in our opinion, has passed the order in a mechanical way without applying its mind. A perusal of the complaint would show that the entire dispute raised by the complainant is based on the alleged agreement to sell dated 25-12-1988 nearly 11 years prior to the filing of the private complaint on 17-5-1999. The existence of any such agreement or any advance taken has been specifically denied by the appellant by way of his reply dated 18-7-1996 in response to the legal notice dated 11-7-1996 sent by the complainant through his lawyer. For nearly 3 years from the date of reply, the complainant kept quiet before filing his complaint on 17-5-1999 before the Magistrate. It is stated that even as per the police report, no offence is made out against Accused 2-4. Despite this, the Magistrate issued process against Accused 2-4 as well which clearly shows the non- application of mind by the Magistrate. A perusal of the complaint would only reveal that the allegations as contained in the complaint are of civil nature and do not prima facie disclose commission of 47 alleged criminal offence under Section 420 IPC. The Magistrate, in our opinion, has not considered the report filed by the police under Section 156(3) CrPC judicially. Irrespective of the opinion of the police, the Magistrate may or may not take cognizance under Section 190(1) CrPC. In the instant case, as could be seen from the records, the police has given a clean chit to Accused 2-4. In our opinion, the Magistrate ought not to have taken cognizance of the alleged offence against Accused 1, the appellant herein and that the complaint has been made to harass Accused 1 to come to terms by resorting to criminal process."

THE DECISIONS RELIED ON BY SHRI SANKALP KOCHAR, ADVOCATE

26. In case of Jaswant Singh (supra), the Supreme Court has observed as under:-

"19. From the above discussion on the settled legal principles, it is clear from the facts of the present case that there was a clear abuse of the process of the Court and further that the Court had a duty to secure the ends of justice. We say so for the following reasons:

a) The allegations made in the FIR had an overwhelmingly and predominatingly a civil flavour inasmuch as the complainant alleged that he had paid money to Gurmeet Singh, the main accused to get employment for his son abroad. If Gurmeet Singh failed the complainant could have filed a suit for recovery of the amount paid for not fulfilling the promise.

b) Initially, the investigating officer and two superior officers of the economic wing has found that there is no substance in the complaint making out even a prima facie triable case and had therefore, recommended for closure. However, on the orders of the Senior Superintendent of Police, the FIR was registered and the matter was investigated. No criminal breach of trust was found and the charge sheet was submitted only against Gurmeet Singh under section 420 I.P.C.

c) The complainant Nasib Singh had clearly deposed that he had paid Rs. 4 lacs cash to Gurmeet Singh and had also given a cheque of Rs. 2 lacs favouring Gurmeet Singh which he had encashed.

d) During trial the present appellant as also the other co-accused Gurpreet Singh were summoned in April 2014 invoking powers of Section 319 Cr.P.C., for being tried under Section 48 420 I.P.C. It may be noted that no specific allegations of cheating are made against these two accused as they were both settled abroad in Italy.

e) The complainant Nasib Singh entered into a compromise with the main accused Gurmeet Singh which was filed before the learned Magistrate and the same was accepted vide order dated 26.09.2014 and the alleged offence being of financial transaction stood compounded. Proceedings against Gurmeet Singh were closed.

f) Right from 2014, the present appellant and other co-accused Gurpreet Singh who were in Italy were being summoned by the Court. The appellant was declared proclaimed offender. The appellant applied before the High Court challenging the order declaring him proclaimed offender and also filed a 482 Cr.P.C. petition for quashing of the proceedings wherein, he also filed the compounding order of 26.09.2014.

g) The High Court merely perused the FIR and noting the fact that the name of the appellant was mentioned in the FIR, declined to exercise the inherent power under Section 482 Cr.P.C."

27. Further, in case of Anil Mahajan (supra), the Supreme Court has observed as under:-

"8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant's own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question."

28. Likewise, in a case of Dhanesh Jain (supra), the Supreme Court 49 has further observed as follows:-

"16. [Ed. : Para 16 corrected vide Official Corrigendum No. F.3/Ed.B.J./86/2008 dated 18-10-2008.] We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, this Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of Respondent 1- plaintiff in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simpliciter does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie correct, take into consideration the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the court. Superior courts while exercising this power should also strive to serve the ends of justice.

20. In Hira Lal Hari Lal Bhagwati v. CBI [(2003) 5 SCC 257 : 2003 SCC (Cri) 1121] this Court opined : (SCC p. 280, para 40) "40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-

bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Penal Code does not arise."

(emphasis in original) 50 (See also Suresh v. Mahadevappa Shivappa Danannava [(2005) 3 SCC 670 : 2005 SCC (Cri) 783] and Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188])"

THE CASE LAW RELIED ON BY SHRI PRAKASH UPADHYAY, ADVOCATE

29. Shri Upadhyay has placed reliance upon a case of Bhushan Chander (supra) saying that in view of the law laid down by the Supreme Court no sanction under sanction 197 is required in the facts and circumstances.

30. Shri Upadhyay has also relied upon the case of M/s India Carat Pvt. Ltd. (supra) saying that the Supreme Court has observed that the Magistrate even after police report, that no offence is made out, can register the offence. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and should independently apply his mind to the facts emerging from the investigation taking into account the statement of the witnesses examined by the police.

31. He has further placed reliance upon the case of Vijayander Kumar (supra) saying that merely because a nature of dispute is of civil does not mean that the criminal offence cannot be registered. He has further submitted that the Supreme Court in the said case has observed that if a given set of facts making out a civil wrong and also a criminal offence, the criminal offence can be registered.

32. He has also relied upon the case of Aryan Singh (supra) and contended that the Supreme Court in the said case has dealt with the power provided under Section 482 of CrPC to the High Court and observed that the same is very limited and the High Court cannot conduct a mini trial from the stage of discharge or quashing the criminal 51 proceeding.

CONCLUSION

33. After dealing with the facts involved in the present cases, the submissions made by learned counsel for the parties and the law relied upon by them, especially the case of Amanullah (supra), it is clear that as to when the High Court can exercise inherent power provided under Section 482 of CrPC. The Supreme Court in the case of Amanullah (supra) relying upon the law laid down in case of Bhajan Lal (supra) has observed that at the stage of taking cognizance, the duty of the Court while exercising the jurisdiction under Section 482 of CrPC and observed as under:-

"A careful reading of the material placed on record reveals that the CJM took cognizance of the offences alleged against the accused persons after a perusal of the case diary, charge-sheet and other material placed before the court. The cognizance was taken, as a prima facie case was made out against the accused persons. It is well settled that at the stage of taking cognizance, the court should not get into the merits of the case made out by the police, in the charge-sheet filed by them, with a view to calculate the success rate of the prosecution in that particular case. At such stage, the court's duty is limited to the extent of finding out whether from the material placed before it, the offence alleged therein against the accused is made our or not with a view to proceed further with the case."

(emphasis supplied)

34. The Supreme Court further in a case of Parminder Kaur (supra) in which allegation of alteration made in the dates of revenue records has considered the fact that mere alteration does not make the document forged and alteration must be for some gain or for some objective.

"To attract the second clause of S. 464 there has to be alteration of document dishonestly and fraudulently. So in order to attract the 52 clause "secondly" if document is to be altered it has to be for some gain or with such objective on the part of the accused. Merely changing a document does not make it a false document. Therefore, presuming that the figure "1" was added in date in document in question, as was done in this case, it cannot be said that the document became false for the simple reason that the appellant-accused had nothing to gain from the same and she was not going to save the bar of limitation."

35. Thus, from the available material and after scrutiny of documents including the documents which are not disputed, this Court is of the opinion that the things are very clear as day light and can be read from open eye indicating that the complaint made by the complainant is based upon unfounded allegations which are apparently incorrect and created with mala fide intention and makes the alleged prosecution malicious. When the Court after detailed scrutiny found that the allegations made against the petitioners do not stand anywhere and at all cannot be proved on the basis of material available, the Court cannot permit and allow such a proceeding to be continued because that would be nothing but an abuse of process of law. It is an admitted fact that in pursuance to the 'Will' executed in favour of Neeraj Patel, he acquired the land and as per his statement, he sold some portion of the land to the complainant and also to some of the petitioners, specifying the boundaries of the land and thereafter a registered agreement was executed between the complainant/Brijesh Bamne and Smt. Amrita Goel showing location of the land and also the passage given from the land of Smt. Amrita Goel to the complainant so as to access his land. Further, the revenue authorities have found the complainant an accused of fabricating sale-deed because baseless allegations have been made against one of the petitioners i.e. Rashmi Ashim Sen that too without any material as to what she would gain for alleged manipulation in the sale-deed. Under such circumstances, the complaint made and the prosecution initiated thereof 53 are absolutely unsustainable. When things are very clear and no ambiguity is in the mind of the Court and even when any layman can understand that the prosecution is frivolous, based upon incorrect facts and wrong foundation then the Court in exercise of jurisdiction under Section 482 of CrPC will not show any hesitation in quashing such a prosecution. In my opinion, in view of the law laid down by the Supreme Court though confining jurisdiction of the High Court under Section 482 of CrPC but it is a fit case in which this Court, exercising the inherent power of 482 of CrPC, can quash the proceedings and as such, the order passed by the trial Court on 08.01.2022 in UNRC No.56/2019/RCT No.17/2022 is not sustainable, therefore, it is hereby set aside. The proceedings initiated by the complainant by filing complaint which are based upon false and incorrect facts do not constitute the alleged offence against the petitioners and therefore, said proceedings are not only malicious but an abuse of process of law, ergo, they are also set aside.

36. With the aforesaid observations, both the petitions are allowed and disposed of. No order as to cost.

(SANJAY DWIVEDI) JUDGE ac/-

Digitally signed by ANIL CHOUDHARY Date: 2024.01.25 17:13:29 +05'30'

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