Karnataka High Court
Smt.Pahsa Begum W/O Syed vs The State Of Karnaaka on 21 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.201176/2015
C/W
CRIMINAL PETITION NO.201142/2015
In Crl.P. No.201176/2015:
Between:
Smt. Pasha Begum W/o Syed
Age: 40 years
Occ: House wife work
R/o Azaad Nagar, Raichur
... Petitioner
(By Sri Iswaraj S. Chowdapur, Advocate)
And:
1. The State of Karnataka
Sadarbazar P.S., Raichur
2. Smt. Sumitra W/o Late Suresh
Age: 53 years, Occ: House hold work
R/o H.No.12-10-111/15
Sukhani Colony, Raichur and
Flat No.4, Pump house
Hanjar Nagar, Andheri
East-Mumbai through GPA holder
Sri Ravindra Jaldar S/o T. Narasappa
Age: 50 years, Occ: Contractor
2
R/o H.No.4-4-143
Zahirabad, Raichur
... Respondents
(Sri Mallikarjun Sahukar, HCGP for R1;
Sri Shivakumar Kalloor, Advocate for R2)
This criminal petition is filed under Section 482 of the
Code of Criminal Procedure, praying to quash the process
order dated 06.05.2014 passed in PC No.155/2010 by
JMFC-II, Raichur against the petitioner (accused No.3) and
the order is confirmed in Crl. Rev. Petition No.67/2014 dated
21.10.2015 by Prl. Sessions Judge at Raichur.
In Crl.P. No.201142/2015:
Between:
1. Kishan S/o Yenkoji Rao
Aged about 58 years
Occ: Private Service
R/o Sukhani Colony, Raichur
2. Maruthi S/o Kishan
Aged about 30 years
Occ: Private Service
R/o Sukhani Colony, Raichur
... Petitioners
(By Sri Manvendra Reddy, Advocate)
And:
1. The State of Karnataka through
Sadar Bazar Police Station, Raichur
2. Smt. Sumitra W/o Late Suresh
Aged about 55 years
Occ: Household, R/o H.No.12-10-111/15
Sukhani Colony, Raichur and at
3
Flat No.4, Pump house
Hanjar Nagar, Andheri East
Mumbai, through GPA holder
Ravindra Jadar S/o T. Narasappa
Aged about 51 years, Occ: Contractor
R/o H.No.4-4-143, Zahirabad, Raichur
... Respondents
(Sri Mallikarjun Sahukar, HCGP for R1;
Sri Shivakumar Kalloor, Advocate for R2)
This criminal petition is filed under Section 482 of the
Code of Criminal Procedure, praying to exercise the inherent
powers under Section 482 of Cr.P.C. examine the records
and quash the proceedings in C.C.No.1945/2014
(Cr.No.248/2010 of Respondent No.1 P.S.) pending before
JMFC-II Court, Raichur and quash the Crl. Revision Petition
No.23/2015 passed by the Prl. Sessions Judge, Raichur
dated 21.10.2015.
These petitions having been heard and reserved for
orders on 24.08.2020, coming on for pronouncement of
orders this day, the Court made the following:
ORDER
Criminal Petition No.201176/2015 is filed by accused No.3 in Crime No.248/2010 and Criminal Petition No.201142/2015 is filed by accused Nos.1 and 2 in the said crime. The petitioners herein are accused Nos.1 to 3 as stated above in the same crime No.248/2010. Therefore, both these petitions are taken up together for common consideration. Since their 4 genesis is one and the same, they are taken up for disposal in common.
2. Brief facts of the case are as under:
The 2nd respondent herein had filed private complaint No.155/2010 before the Court of Prl. JMFC-II at Raichur against these petitioners and against the Commissioner of City Municipal Council, Raichur by invoking the provisions of Section 200 of Cr.P.C. and the said complaint is filed through General Power of Attorney Holder of the complainant put forthing the averments that the 2nd respondent is the absolute owner in possession of residential house bearing No.12-10-111/15 consisting of Ground and First Floor "Sumitra Nivas", Sukhanya Colony, behind Kadam Factory, Siyatalab, Raichur. It is stated that the 2nd respondent-complainant is issueless and she is visiting Mumbai frequently to look after the property at Mumbai and the General Power of Attorney holder is entrusted to 5 look after and maintain the above said house property.
It is stated that the complainant is paying property tax and the khata extract of the said property were standing in the name of the complainant and also the above said property was assessed for tax by the CMC, Raichur and thus, standing in the name of the complainant. Hence, the complainant is claiming that she is the owner of the said property. It is further averred in the private complaint that when the General Power of Attorney holder Ravindra Jaldar went to CMC Office, Raichur to pay property tax on 15.10.2010, then he came to know that there is an illegal entry found in the Municipal records and in other records and the name of accused No.1 was entered. Therefore, it is averred that the entry of accused No.1 is illegal.
Accused No.1, who is petitioner No.1 in Criminal Petition No.201142/2015 is elder brother of the 2nd respondent-complainant and noting that the 2 nd respondent is frequently absent at Raichur, taking 6 disadvantage of this fact, accused No.1 had got mutated his name in the Municipal records pertaining to the house property by removing the name of the complainant from the Municipal records. Further, it is averred that accused No.1 had gifted the said property in favour of his son, who is arraigned as accused No.2 in the said crime by way of registered document dated 16.09.2009 and thus, usurped the property of the complainant and duped the complainant. Thus, it is alleged that by way of forgery and fabrication of documents, accused No.1 had got mutated his name in Municipal records pertaining to the property of the complainant and then gifted the same in favour of his son - accused No.2. Further, it is averred that accused No.3/petitioner in Criminal Petition No.201176/2015 by colluding with accused No.1 and 2 had purchased the said property through registered sale deed dated 16.08.2010 from accused Nos.1 and 2.7
Therefore, it is alleged in the complainant that with this modus of operendi stated above, all accused Nos.1 to 3 have colluded each other and taken away the property of the complainant. It is further alleged that accused Nos.1 to 3 have colluded with the officials of the City Municipal Council, Raichur and manipulated the documents by making the offence of forgery, fabrication of documents and cheating etc., for getting monetary benefit of the said property. Thus, the 2nd respondent-complainant had filed a private complaint before the Magistrate under Section 200 of Cr.P.C. as stated above, which is registered as Crime No.248/2010 in Sadarbazar Police Station, Dist. Raichur, for the offences punishable under Sections 467, 468, 420 r/w Section 34 of IPC.
3. The learned Magistrate, after receipt of the said complaint had referred the matter for investigation to the PSI of the said Police Station under Section 156(3) of Cr.P.C. and directed to file report in this 8 regard. The Police Sub-Inspector of Sadarbazar Police Station had started investigation and filed a final report which is 'B' final report by coming to the conclusion that during the course of investigation, the offences as alleged are not made out and there is no evidences available to file a charge sheet against accused Nos.1 to 3 and thus, filed 'B' final report to the Court.
4. The 2nd respondent has filed protest petition to the said 'B' final report and the learned Magistrate had recorded a sworn statement of the complainant and documents produced and the learned Magistrate, after perusal of the same had formed opinion that prima facie accused No.3 by colluding with accused Nos.1 and 2 had got registered the sale deed and therefore, rejected the 'B' final report filed by the Investigating Officer and has taken a cognizance of the offences punishable under Section 467, 468, 420 r/w Section 34 of IPC and issued process to accused Nos.1 to 3 by passing order on 06.05.2014.
95. Being aggrieved by this, accused Nos.1 and 2 have filed Criminal Revision Petition No.23/15 and the accused No.3 has filed Criminal Revision Petition No.67/14 before the Court of the Prl. Dist. & Sessions Judge, Raichur. The Revision Court had dismissed the said criminal revision petitions and confirmed the order passed by the learned Magistrate.
6. Assailing the order passed by the learned Magistrate dated 06.05.2014 and the order passed by the learned Prl. District & Sessions Judge dated 21.10.2015, accused Nos.1 to 3 have filed these petitions before this court, invoking the provisions under Section 482 of Cr.P.C..
7. I have heard the learned counsel for the petitioners as well as the learned SPP for R1 and learned counsel for respondent No.2.
8. Learned counsel for the petitioner in Criminal Petition No.201176/2015/accused No.3 has 10 submitted that accused No.3 is a bonafide purchaser of the property from accused No.2 and she has not at all colluded with accused Nos.1 and 2 for purchasing the same. He further submitted that after verifying the Municipal records in respect of the property and after ascertaining the fact that the property is standing in the name of the 2nd respondent, she had purchased the property on 16.08.2010, but later, when she (accused No.3) came to know that there is a dispute between the 2nd respondent-complainant and accused Nos.1 & 2, had given up the said property by getting and executing re-registration of the sale deed in favour of accused No.2 on 03.10.2013. Therefore, this conduct of the petitioner itself shows that she does not want to be involved in any legal wrangle and soon after coming to know of the fact that the property is involved in litigation between the complainant and accused 1 and 2, she had re-sold the said property in favour of accused Nos.1 and 2. He further submitted hat when it is the allegation of the 11 complainant that accused No.1 had got mutated his name in the Municipal records, but in what mode this petitioner (accused No.3) had colluded with accused Nos.1 and 2 is not stated. Therefore, the petitioner herein is falsely implicated in this case. Hence, he prays to allow the petition and quash the criminal proceeding imitated against the petitioner/accused No.3.
9. Learned counsel for the petitioners in Criminal Petition No.201142/2015 (accused Nos.1 and
2) submitted that there are no documents in favour of the complainant with regard to how the complainant has acquired the said property. It is submitted that the complainant has produced only some Municipal records viz., tax assessment extract, tax paid receipts, khata extracts etc. Without being producing the title document, she is claiming ownership over the property. Therefore, in this regard, the Investigating Officer had correctly arrived at a conclusion that the complainant 12 has no record to show that she is the owner of the property and thus offences alleged are not made out and therefore, the remedy for the complainant lies before the competent Civil Court by filing a suit but not by filing criminal complaint before the Court. He also submitted that the complainant is also claiming her ownership over the property based on the khata extract, property tax paid receipt etc., and accused No.1 is also claiming the ownership over the property based on the same Municipal records. Therefore, he submitted that the complainant herself admitted in her private complaint that accused No.1 is her elder brother. Therefore, accused No.1 is inherited the said property through his ancestor. Hence, he submitted that the claim of the complainant is false and if at all she wants to establish her title, she is at liberty to file a suit before the competent Civil Court. Further, he submitted that the dispute is mainly revolving regarding ownership of the property and the entire case is revolving as if it is a 13 civil nature of dispute and the criminal Courts do not have power to decide who is the owner of the property. Therefore, when the complainant in the private complaint is claiming her right only through some Municipal records, that too, those records are stray documents. Therefore, considering that the complaint is in the nature of civil dispute, initiation of criminal proceedings by invoking Section 200 of Cr.P.C. is not maintainable, as it amounts to abuse of process of Court. Therefore, he prays to allow the petition and to quash the criminal proceedings initiated against accused Nos.1 and 2.
10. Before adverting to the controversial points involved in the present case on the admitted facts whether initiation of the criminal proceedings in the present case on the given set of facts and circumstances stated above is amounting to abuse of process of court or not, let me consider the principle of law laid down by the Hon'ble Apex Court.
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11. Learned counsel for the 2nd respondent- complainant relied on the judgment of the Hon'ble Apex Court in the case of Vijayander Kumar and others vs. State of Rajasthan and another reported in [2014] ACR 310, wherein the Hon'ble Apex Court has pleased to observe at para 13 as follows:
"13. On considering the facts of the present case it is found that the facts were properly noticed by the High Court on earlier occasion while examining the petition preferred by the appellants for quashing of FIR of this case. The same view has been reiterated by the High Court in the order under appeal for not interfering with the order of cognizance by the learned Magistrate. Hence, we do not find any good ground to interfere with the criminal proceedings against the appellants at this stage. The appeal is, therefore, dismissed. No costs."
12. Further, the learned counsel for the 2nd respondent-complainant has relied on the judgment of 15 this court in the case B. Ravikumar vs. Ananth reported in 2006 (2) AIR Kar R 284.
13. Further, the learned counsel for the 2nd respondent-complainant placed reliance on the judgment of the Hon'ble Apex Court in the case of C.P. Subhash v. Inspector of Police, Chennai & Ors. reported in AIR 2013 SC (Criminal) 1720, wherein at paragraphs 7, 8 and 9, their Lordships' were pleased to observe as follows:
"7. The legal position regarding the exercise of powers under Section 482, Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances 16 enumerated in the decision of this Court in State of Haryana and Ors. v Ch. Bhajan Lal and Others, 1992 Supp (1) SCC 335 : (AIR 1992 SC 604 : 1992 AIR SCW 237). Reference may also be made to the decision of this Court in Rajesh Bajaj v. State, NCT of Delhi (1999) 3 SCC 259 : (AIR 1999 SC 1216 : 1999 AIR SCW 881) where this Court observed:
"...If factual foundation for the offence has been laid down in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence."
8. To the same effect is the decision of this Court in State of Madhya Pradesh v. Awadh Kishore Gupta (2004) 1 SCC 691: (AIR 2004 SC 517 : 2003 AIR SCW 6501) where this Court said:
"...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great 17 caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the 18 complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code..."
9. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr. (2009) 3 SCC 78: (AIR 2009 SC (Supp) 59 : 2009 AIR SCW 307) and Harshendra Kumar D. v. Rebatilata Koley etc. (2011) 3 SCC 351: (AIR 2011 SC 1090 :
2011 AIR SCW 1199) reiterate the above legal position."
14. On the other hand, learned counsel for the petitioner in Criminal Petition No.201142/2015 has relied on the judgment of the Hon'ble Apex Court in Criminal Appeal No.834/2017 dated August 08, 2019 in the case of The Commissioner of Police & Ors. vs. Devender Anand and Ors. In this judgment, their Lordships' were pleased to observe in the said facts and circumstances at paragraphs 4.2 & 4.3 as under:19
"4.2 It is required to be noted that after having come to know that the property was mortgaged with the Andhra Bank, the original complainant himself paid the mortgage money and got the mortgage redeemed. Not only that, thereafter, he got the sale deed executed in his name. Thereafter also, he filed the complaint with the learned Magistrate, being an application under Section 156(3) of the Cr.P.C., which came to be rejected by the learned Magistrate, vide order dated 27.03.2015. The said order was not assailed by the complainant. It appears that thereafter he filed a private complaint under Section 200 Cr.P.C. which was pending before the learned Magistrate. Despite the above, he filed a writ petition before the High Court, which is nothing but an abuse of the process of law. The criminal proceedings have been initiated by the original complainant to settle the civil dispute. Therefore, in the facts and circumstances of the case, the Investigating Officer and other police officers were justified in not registering the FIR and in coming to the conclusion that the complaint be filed. The earlier opinion on preliminary inquiry was never placed before the DCP. Thereafter, on thorough investigation/inquiry and considering the facts 20 and circumstances of the case narrated hereinabove, when it was opined that the dispute between the parties is of a civil nature, the High Court ought not to have issued further directions. The High Court ought to have closed the proceedings. Not only the High Court has issued further directions, but even has imposed costs and an action against the appellants 3 to 5 herein which, in the facts and circumstances of the case, is not sustainable.
4.3 In view of the above and for the reasons stated above and as observed hereinabove, the initiation of the criminal proceedings by the original complainant is nothing but an abuse of the process of law, we not only quash and set aside the impugned judgment and order, but also quash the criminal proceedings pending before the learned Magistrate in respect of the transaction in question. Consequently, the present appeal is allowed, the impugned judgment and order dated 13.01.2017 passed by the High Court is hereby quashed and set aside. Even the criminal proceedings initiated by the original complainant pending before the learned Magistrate in respect of the transaction in question are hereby quashed and set aside."21
15. The Hon'ble Apex Court in the case of Janata Dal vs H.S. Chowdhary and others [(1992) 4 Supreme Court Cases 305] was pleased to laid down the principle of law regarding exercise of power under Section 482 of Cr.P.C by the High Court at paragraphs 131 to 136, which reads as under :-
"131. Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex aliquid alicia concedit, conceder videtur id sine quo ipsa, ess uon protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.
132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito 22 justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
133. The Judicial Committee in (1) Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18, 22) and (2) Lala Jai Ram Das v. Emperor [(1945) 47 Bomb. LR 634] has taken the view that Section 561-A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.
134. This Court in Dr. Raghubir Sharan v. State of Bihar [(1964) 2 SCR 336] had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J. speaking for himself and Raghubar Dayal, J. after referring a series of decisions of the Privy Council and of the various High Courts held thus:
"...[E]very High Court as the highest court exercising criminal jurisdiction in a State has 23 inherent power to make any order for the purpose of securing the ends of justice .... Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers ...."
135. See Talab Hazi Hussain v. Madhukar Purshottam Mondkar and Anr. (1958 SCR 1226) and Pampapathy v. State of Mysore (1966 Supp SCR 477).
136. Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] that the power in not to be resorted to if there is a specific provision in the Code for the redress of grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam; (2) 24 Khushi Ram v. Hashim (AIR 1959 SC 542; and (3) State of Orissa v. Ram Chander Agarwala [(1979) 2 SCC 305)."
16. Further, the Hon'ble Apex Court in the case of Minu Kumari and another vs State of Bihar and others [(2006) 4 Supreme Court Cases 359] at paragraphs 19 and 20 has held as under:-
"19. The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law.25
That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of 26 the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary [(1992) 4 SCC 305], and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1)."27
17. Further, the Hon'ble Apex Court in the case of Indian Oil Corpn. vs NEPC India Ltd. and others [(2006) 6 Supreme Court Cases 736] at para 12 has observed as under :-
"Re: Point (i)
12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana vs. Bhajan Lal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [(1995) 6 SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar vs. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v.28
State of Bihar [(2000) 4 SCC 168], M. Krishnan vs Vijay Singh [(2001) 8 SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with 29 malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil 30 law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
18. Having considered the said principle of law laid down by the Apex Court and also relying on the decisions referred by both the parties as stated supra, the present case is to be considered for exercising the inherent power of this Court.
19. The facts and circumstances in Vijayander Kumar's case (supra) are that, some of the directors of the company had purchased cotton through the complainant firm and as per the accounts, the complainant firm was to receive a sum of 31 Rs.47,28,115.80/-. But the accused persons without taking the complainant into confidence, entered into an agreement for transfer of management, assets and liabilities of the companies and thus, in this factual background it was alleged that there is offence of cheating by well conspiracy. Therefore, under those circumstances, the Apex Court at para 13 has held declining to interfere with the cognizance of offence taken by the Magistrate against the appellants.
20. In C.P. Subhash's case (supra), the proceedings initiated was under the circumstances that forged documents were produced in evidence and considering the applicability of bar under Section 195 of Cr.P.C and claiming execution of sale deeds by the respondents and thus claimed title to property in question and under these circumstances the Apex Court has revived the complaint and held that quashing of complaint is unjustified.
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21. In B. Ravikukmar's case (supra), this Court held that there are allegations of forgery, criminal breach of trust and cheating are made in getting execution of sale deed and therefore, declined to interfere with the order of taking cognizance, as it was confirmed by the revisional court. Thus, the petition was dismissed.
22. Upon considering the present case, the complainant even though has produced voluminous documents while lodging complaint under Section 200 of Cr.P.C., but has not produced any title deed prima facie to show that she is the owner of the property and thus, by virtue of that her name is mutated in the Municipal records. As admitted in the complaint, the complainant had only stated that her name was standing in the Municipal records, like property tax paid receipt, Tax Assessment Register, khata extract etc. It is alleged against accused No.1 that colluding with the 33 officials of the City Municipal Council he has got mutated his name. Therefore, both the complainant and accused No.1 are claiming the property only on the basis of the records of the City Municipal Council.
23. It is needless to state that this Court while dealing with the petitions filed under Section 482 of Cr.P.C. cannot go into the question who is the owner or title holder of the property in question. The petition filed under Section 482 of Cr.P.C. can be considered where any allegation is made in the complaint so as to constitute the offence alleged and to see whether there is any abuse of the court in initiating criminal proceedings or whether power under Section 482 of Cr.P.C. is to be exercised to secure the ends of justice. There are two contingencies for invocation of Section 482 of Cr.P.C. by this Court, where there is abuse of process of court or to secure ends of justice. 34
24. Upon considering the present case, it appears that the 2nd respondent-complaint has made only omnibus allegation against accused No.1 that he got mutated his name over the property in question and then gifted the same to accused No.2 and then accused No.3 had purchased the same from accused No.2. The only omnibus allegation is that all the accused Nos.1 to 3 have colluded with each other and committed the offence alleged. Except this, nothing is stated in the complaint. It is also an admitted fact as it can be seen from the complaint itself that, accused No.1 is none other than elder brother of the complainant. The complainant has also not stated on what basis she has acquired the said property to show that her name is standing in the Municipal records. The complainant is claiming her ownership over the property only on the basis of the Municipal records and accused No.1 is also claiming the property only on the basis of the Municipal records.
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25. It is the accusation found in the present complaint that the name of the complainant was removed from the Municipal records and then it was mutated in the name of accused No.1 in collusion with the officials of the City Municipal Council. But, in the complaint, the complainant has not stated who are the officials of the City Municipal Council have helped accused No.1 in mutating his name. Initially in the private complaint, the complainant has made the Commissioner of CMC, Raichur as accused No.4 on his official designation without mentioning name of the Commissioner of CMC, but the Magistrate has taken cognizance of the offence only against accused Nos.1 to 3 and issued process to accused Nos.1 to 3 only. There are no prima facie averments in the complaint that who are the officials of CMC have helped to mutate the name of accused No.1. The allegation in respect of accused No.2 is that accused No.1 had gifted the said property in favour of accused No.2 and the allegation against 36 accused No.3 is that she had purchased the said property from accused No.2 and it is only omnibus allegation that all accused Nos.1 to 3 have colluded with each other. Except this, there are no averments in the complaint which constitute offence against accused Nos.1 to 3 even considering the complaint on its prima facie value. Therefore, under these circumstances, the judgments of the Hon'ble Apex Court as relied on by the counsel for the 2nd respondent are not applicable to the present case, because the facts and circumstances therein are different from the present case.
26. Accused No.3 is the purchaser of property from accused No.2. The allegation that accused No.3 has committed the offence alleged cannot be found in the private complaint filed by the 2nd respondent- complainant. Furthermore, accused No.3 had re-sold the said property once again in favour of accused No.2 and the said sale deeds are produced herein. In this 37 regard, I find force in the argument canvassed by the learned counsel for the petitioner in Criminal Petition No.201176/2015 (accused No.3) that accused No.3 is the bonafide purchaser of the property and has purchased the property on 16.08.2010 and later she came to know that there is litigation over the property. Then she has re-sold the said property on 03.10.2013 in favour of respondent No.2. Therefore, under these circumstances, there are no prima facie allegations revealed so as to attract the offence against accused Nos.1 to 3. Just because there is mutation of name in the Municipal records, removing the name of the complainant and entering the name of accused No.1 do not constitute the offence alleged in the present case. Admittedly, both the complainant and accused No.1 are brother and sister.
27. Therefore, upon considering the entire private complaint lodged on its prima facie value, the 38 entire case is revolving purely civil in nature and it appears that the complainant without approaching the competent Civil Court for establishing her ownership and title has filed the present private complaint and initiated the criminal proceedings. Therefore, even though where the cases are flavored with civil nature of litigation but also having elements constituting the criminal offences, the said criminal proceedings cannot be quashed. The present case shows a different aspect that the entire averments in the complaint do not constitute prima facie an offence against the petitioners herein attracting criminal liability and is found to be completely civil in nature to be established before the competent Civil Court, but not by way of filing criminal complaint and initiating criminal proceedings. Therefore, under these circumstances, the criminal proceedings initiated by virtue of the order passed by the learned JMFC-II, Raichur in P.C.No.155/2010 dated 06.05.2014 is liable to be quashed.
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28. Hence, I proceed to pass the following:
ORDER Criminal Petition No.201176/2015 is allowed and the process order dated 06.05.2014 passed in P.C.No.155/2010 by the JMFC-II Raichur against the petitioner/accused No.3 is hereby quashed.
Consequently, the order passed in Crl. Rev. Petition No.67/2014 dated 21.10.2015 by the Prl. Sessions Judge, Raichur is set aside.
So also, Criminal Petition No.201142/2015 is allowed and the proceedings in C.C.No.1945/2014 (Cr.No.248/2010 of respondent No.1 P.S.) pending before JMFC-II Court, Raichur are quashed.
Consequently, the order passed in Crl. Revision Petition No.23/2015 by the learned Prl. Sessions Judge, Raichur dated 21.10.2015 is set aside.40
The 2nd respondent-complainant is at liberty to work out her remedy before the appropriate forum/court of law.
Sd/-
JUDGE LG