Gujarat High Court
Jamnadas Gordhanbhai Dobariya vs State Of Gujarat on 10 June, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/4574/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4574 of 2019
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JAMNADAS GORDHANBHAI DOBARIYA
Versus
STATE OF GUJARAT
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LD SR ADVOCATE MR ANSHIN DESAI WITH MR.NANDISH H THACKAR(7008) for the
Applicant(s) No. 1,2
LD ADV MR J M PANCHAL WITH KSHITIJ M AMIN(7572) for the Respondent(s) No. 2
MR. RAHUL R DHOLAKIA(6765) for the Respondent(s) No. 2
MS SHRUTI PATHAK, ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : /06/2019
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor waives service of Rule for the respondentState. The Rule is returnable forthwith on consent.
2. This is a petition under Section 482 of the Code of Criminal Procedure for quashment of the FIR being IC.R.No.43 of 2019 registered with Kamrej Police Station, District Surat, for the offences punishable under Sections 465, 467, 468, 471, 120(B) and 114 of the Indian Penal Code.
3. Brief facts leading to the present FIR are as follow:
3.1 It is the case of the petitioner that the Page 1 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER original owners of the land in question bearing Block No.237, Survey No.304 admeasuring 62550 sq.mtrs. situated at Kathor, Taluka Kamrej, District Surat executed Banakhat in favour of the petitioners on 23.04.1982. The complainant herself is a party to the said document and has herself put her signature. The petitioners have paid Rs.25,000/ towards the sale consideration out of the total amount of Rs.1,39,351/ as agreed between the parties. Remaining amount was to be paid by the petitioners after the permission to sell by the Collector was obtained by the original owners.
3.2 The agreement to sell dated 23.04.1982 and the possession receipt of the selfsame date also favoured the petitioners.
3.3 On 14.07.1982, agreement to sell was executed by the original owner through power of attorney namely Ramanbhai Punabhai with regard to the subject land in favour of the petitioners. The said Ramanbhai Punabhai executed documents with Page 2 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER regard to the receipt of remaining payment of Rs.1,35,000/ towards the total sale consideration and the petitioners continued to posses the land since 1982.
3.4 In the year 1986, a false case was registered by the complainant side against the brother of the petitioners for the offences punishable under Section 302 of the Indian Penal Code for the murder of Bhaniben Punabhai w/o Punabhai Sukhabhai. In the said FIR the case of the prosecution was that in agreement to sell with regard to the very land the consideration was fixed of Rs.1,45,000/, out of which the sum of Rs.45,000/ came to be paid and the remaining amount of Rs.1,00,000/ was to be paid. When the deceased Bhaniben Punabhai, on the date of incident, went to seek remaining amount from the brother of the petitioners namely Damjibhai Gordhandas Dobariya, the accused gave kick blows and pushed the deceased and thereby caused her head injury due to which she sustained the injury Page 3 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER and after being hospitalized for 13 days she succumbed to the said injury. The Sessions Case No.130 of 1986 eventually culminated in to acquittal of brother of the petitioners on 01.10.1987 essentially on the ground that medical evidence did not endorse any severe injuries, the FIR came to be registered after a period of about 26 days without any plausible explanation. 3.5 On 22.05.1996, the complainant as well as the other original owners had sent a legal notice to the petitioner through their advocate Shri Shantilal J Shah contending inter alia that agreement to sell was executed by the power of attorney namely Ramanbhai Punabhai, behind the back of the other coowners of the subject land and hence, the same was not binding to them. Yet another allegation was that the petitioners were not agriculturists and therefore, could not have executed the agreement to sell in their favour.
However, there was not a single averment with regard to any forged document.
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R/CR.MA/4574/2019 ORDER 3.6 This was responded to by the petitioners
through their advocate on 05.06.1996 making the stand clear that the petitioners had made entire payment of consideration with regard to the subject land and accordingly, Ramanbhai Punabhai had been given the payment receipts. He also accepted the entire sale consideration for and on behalf of the original owners as a power of attorney holder. Nobody had disputed at any point of time the execution of power of attorney. 3.7 The petitioners had also given a public notice in a local daily newspaper "Gujarat Mitra"
on 03.06.1998 declaring that the purchase was made of the subject land from the original owners by way of registered Satakhat and he is in possession of the land from the year 1982. 3.8 The petitioners also thereafter filed a Civil Suit being Regular Civil Suit No.02 of 2002 before the Court of learned Civil Judge, Kathor inter alia praying for declaration and injunction Page 5 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER with regard to the subject land. The complainant is a party to the suit along with other original owners which was instituted on 28.08.2002. 3.9 As a counter blast to the said suit, the complainant herein filed a criminal complaint against the petitioners before the Court of learned Magistrate, Kathor by way of Criminal Case No.09 of 2002 against the petitioners and others. The complaint was filed for the offences punishable under Sections 448, 465, 467, 468, 471, 423, 504, 506(2), 34 and 114 of the Indian Penal Code as well as under the provisions of Land Grabbing Act.
3.10 Learned Magistrate, Kathor passed an order under Section 156(3) of the Code of Criminal Procedure directing the police to submit a report and accordingly the investigation was carried out which submitted 'C' summary report stating that the dispute was essentially civil in nature and no offence was made out in the said transaction. The said report was filed by the Page 6 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER Investigating Agency on 18.02.2003. 3.11 The complainant had appeared before the learned Magistrate through an advocate and had sought time on various occasions. On 05.03.2005 the hearing of summary report took place and the advocate of the complainant had requested for further time. Learned Magistrate considering all the aspects rejected the same and accepted the 'C' summary report filed by the Investigating Officer. The complainant has never challenged the same and it is urged that the said order of learned Magistrate has already attained finality. 3.12 The complainant and other owners approached this Court by preferring Special Civil Application No.8416 of 2008. This Court vide order dated 18.07.2008 disposed of the petition with a direction to the learned Civil Judge to conclude the main suit being Regular Civil Suit No.02 of 2002 preferably before 31.03.2009. It further directed the parties to maintain status quo with regard to the subject land till Page 7 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER 31.03.2009. The learned Civil Judge was pleased to record the evidence of both the parties and after adjudicating the issues in the suit, he decided the same in favour of the petitioners by his judgment and order dated 31.03.2009. This suit was allowed and it came to be held that the petitioners were having the lawful permissive possession of the subject land and considering the part performance, the complainant and others were injuncted from transferring or alienating the rights, interest and title to any third party other than the petitioners and accordingly, the decree was drawn.
3.13 The complainant and others preferred First Appeal against the judgment and decree passed by the learned Civil Judge, Kathor by preferring Regular Civil Appeal No.02 of 2010 before the District Court, Surat. The petitioners appeared in the appeal and after hearing both the sides, learned District Judge, Surat rejected the appeal vide judgment and order dated 27.02.2016 Page 8 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER and upheld the decree passed by the learned Civil Judge, Kahor on 31.03.2009 in favour of the petitioners.
3.14 Thereafter, the complainant and others approached this Court by way of Second Appeal No.312 of 2016 challenging the judgment and order dated 27.02.2016 passed by the learned District Judge, Surat. This Court vide its order dated 23.03.2017 admitted the appeal of the complainant and others and the substantial question of law was framed. Both the parties are directed to maintain status quo with regard to the subject land.
3.15 On 21.02.2019 the complainant once again managed to get the impugned FIR register for which an already offence registered by her in the year 2002 and the 'C' summary was filed by the Investigating Agency with regard to the very transaction. The Civil Court gave concurrent findings in favour of the petitioners and therefore, it is urged that second complaint is Page 9 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER by the frustrated litigant, who is intending to settle the score with the petitioners by way of the present FIR. This FIR is nothing but a criminal misuse of machinery. There is no explanation coming forth according to the petitioners, as to how such an FIR after a long delay of 37 years could be filed. This clearly speaks of mala fide and this FIR having been filed with an oblique and ulterior motive to falsely implicate the petitioners in the crime in question, request is made to quash the same with the following prayers:
"8...
(A) YOUR LORDSHIPS may be pleased to quash the FIR registered as C.R.No.I43 of 2019 with Kamrej Police Station, Surat and the subsequent proceedings, in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to stay the further proceedings of FIR registered as C.R.No.I43 of 2019 with Kamrej Police Station, Surat in the interest of justice;
(C) YOUR LORDSHIPS may be pleased to grant
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such other and further relief(s) as may be deemed fit in the interest of justice."
4. This Court while issued the notice for interim relief and Other side has appeared and represented by learned advocate, Mr.J.M.Panchal appearing with learned advocate Mr.Rahul R. Dholakia. Investigating officer has remained present before this Court with the papers of investigation.
5. This Court has heard extensively learned senior advocate, Mr.Anshin Desai appearing with learned advocate, Mr.Nandish Thackar for the petitioners and learned advocate, Mr.J.M.Panchal appearing with learned advocates, Mr.Rahul Dholakia and Mr.Khsitij Amin for respondent No.2.
6. It is argued by the learned senior advocate, Mr.Anshin Desai that this complaint, which is impugned in this petition, is nothing but an outright misuse of process of law. There is a delay of 37 years in filing the complaint without Page 11 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER an iota of reason and explanation, and the second complaint for the very same transaction and occurrence is unsustainable in the eyes of law. He has further urged that the petitioners are the bona fide purchasers of the subject land after paying the consideration and the power of attorney holder has already executed the documents in terms of payment receipt, etc. He has further argued that petitioners had given a public notice as well, they are the bona fide purchaser value without notice and have not forged any documents in the entire transaction under Section 463 of the Indian Penal Code. A person if impersonate the holder of property, it is in the fitness of the things to quash the offence, no offence under Section 465 of the Indian Penal Code has also made out as no document has been forged nor any valuable security. Sections 467, 468 and 471 of the Indian Penal Code also by no stretch of imagination can be attracted.
7. Ld. counsel of the Petitioners have relied on Page 12 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER the certain authorities to substantiate the version, which are as follow:
1. Mohammed Ibrahim and Ors. vs. State of Bihar and Anr, reported in 2010 (1) GLH 184,
2. Joseph Salvaraj A. vs. State of Gujarat, reported in 2011 (7) SCC 59,
3. Uma Shankar Gopalika vs. State of Bihar, reported in (2005) 10 SCC 336,
4. State of Haryana vs. Bhajanlal and Ors, reported in AIR 1992 SC 604,
5. Manojbhai Parshottambhai Movaliya vs. State of Gujarat, reported in 2017(0) AIJELHC 237286.
8. Learned advocate, Mr.J.M.Panchal appearing for and on behalf of the respondent No.2 argued that it is a prematured stage for the Court to intervene after once the investigation is completed, the petitioners can always approach this Court and the Court can exercise its powers. Moreover, it is further urged that the police had also not sufficiently examined the entire issue. After the 'C' summary report had Page 13 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER been submitted, the same also had not been decided on merits by the Court concerned and because the complainant could not remain present, the same had been dismissed. Therefore also, when there is no decision on merits, this Court may not entertain this petition. He has not disputed the fact that before the Trial Court and thereafter in the First Appeal, the matter has favoured the petitioners. However, according to the learned advocate, Mr.Panchal, the Court is not to exercise the powers under Sections 482 of the Code of Criminal Procedure merely on asking. The respondent No.2complainant has never signed the documents. He has also urged that the police has already investigated substantially in the FIR which is impugned and it is found that the complainant and others have been duped and their rights have been severely jeopardized. He does not dispute that the matter on civil side has favoured the petitioners, but according to him, that cannot take away the criminality which writs large on record. He has relied on the following Page 14 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER decision of the Apex Court rendered in Criminal Appeal No.111 of 2011, V.Ravi Kumar vs. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu & Ors, wherein by impugned order, the High Court had allowed the application under Section 482 of the Code of Criminal Procedure observing that the complainant had without any reason withdrawn the first complaint and lodged prosecution for filing of fresh complaint. The complaint arose out of the commercial transaction and it was held that the complainant would have to approach the Civil Court for recovery of dues if at all arising out of the commercial transaction.
9. The question before the Apex Court was whether the High Court should have quashed the subsequent criminal proceedings on the ground that appellant had withdrawn the earlier complaint without assigning the reasons. The transaction being commercial in nature, the ingredients of an offence under the sections Page 15 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER referred to were also found absent and on the ground that the remedy of the appellant before the Apex Court lied in filing the Civil Suit, the Court held that there was no provision in the code of criminal procedure or in any other statute which debars the complainant from making a second complaint on the same allegations when the first complaint did not lead to conviction, acquittal or discharge. Referring to the various decisions, it concluded that the second complaint would not be maintainable where the earlier complaint had been disposed of on full consideration of the case of complainant on merit. It is, therefore, urged by the learned counsel that exercise of inherent powers of the High Court under Section 482 of the Code of Criminal Procedure would depend on the facts and circumstances of each case and it is neither proper nor permissible to lay down any straight jacket formula for regulating the inherent powers under Sections 482 of the Code of Criminal Procedure. They might be exercised to prevent the Page 16 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER abuse of process of law, but only when the allegations would not constitute an offence and are frivolous and vexatious on their face.
10. Learned Additional Public Prosecutor, Ms.Shruti Pathak appearing for respondentState has also supported the case of the respondent No.2 to urge that it is found in the investigation that has been so far carried out that this land being agricultural land could not have been purchased by the petitioners and therefore, the transfer itself was prohibited under the law. She has further urged that the complainant has not signed the documents and has put her thumb impression. The power of attorney, which is challenged by the complainant, clearly indicates that there is a signature of all the three deceased the complainant Gangaben Patel, Dahiben and Bhaniben, but they all are putting the thumb impression and therefore also it is a matter of investigation, let the same be completed and the truth will surface. It is Page 17 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER further urged that on the earlier occasion no papers of investigation collected, no value therefore could be attached to such summary.
11. Having heard the learned advocates on both the sides and also having considered the material on record, it is quite apparent from the record that it is a case of second complaint in relation to the very parcel of the land with the same allegations. The Apex Court as noted hereinabove in case of V.Ravi Kumar (supra) has held that the first complaint if has not led to conviction, acquittal or discharge, the second complaint is not prohibited under the law. The Apex Court also further held that the complaint if is dismissed on merits after an inquiry, the second complaint cannot be made on the same fact. However, if the first complaint was withdrawn without assigning any reason that itself is no ground to quash the second complaint. The Apex Court also held that powers under Section 482 of the Code of Criminal Procedure might be exercised to prevent the abuse Page 18 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER of process of law only when the allegations would not constitute an offence or are frivolous and vexatious on their face. While invoking inherent jurisdiction it is fully impermissible for the High Court to enter into factual arena to adjust the correctness of the allegation in the complaint.
12. It would be profitable to refer to the observations made by the Hon'ble Apex Court in the case of V.Ravi Kumar(supra), wherein, the Apex Court observed as under:
"22. There is no provision in the Criminal Procedure Code or any other statute which debars a complainant from making a second complaint on the same allegations, when the first complaint did not lead to conviction, acquittal or discharge. In Shiv Shankar Singh v. State of Bihar and Anr.1, this Court held:
"18. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, the second complaint would not be Page 19 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit."
23. As held by this Court in Jatinder Singh and Others v. Ranjit Kaur2, it is only when a complaint is dismissed on merits after an inquiry, that a second complaint cannot be made on the same facts. Maybe, as contended by the respondents, the first complaint was withdrawn without assigning any reason. However, that in itself is no ground to quash a second complaint.
24. In Pramatha Nath Talukdar and Anr. v. Saroj Ranjan Sarkar3, this Court dealt with the question whether the second complaint by the respondent should have been entertained when the previous complaint had been withdrawn. The application under Section 482 Cr.P.C. was allowed and the complaint dismissed by the majority Judges observing that an order of dismissal under Section 203 Cr.P.C. was no bar to the entertainment of second complaint on the same facts, but it could be entertained only in exceptional circumstances, for example, where the previous order was passed on an incomplete record or a misunderstanding of the nature of the complaint or the order passed was manifestly absurd, unjust or foolish or where there were new facts, which could not, with reasonable diligence, have been brought on record in previous proceedings.
25. In Poonam Chand Jain and Anr. v. Fazru, this Court relied upon its earlier decision in Pramatha Nath (supra) and held that an order of dismissal of a complaint was no bar to the entertainment of second complaint on the same facts, but it could be entertained only in exceptional circumstances, such as, where the previous order was passed on incomplete record, or on a misunderstanding of the nature of the complaint or was manifestly absurd, unjust or foolish or where there were new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings. Page 20 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
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26. In Poonam Chand Jain (supra) this Court furtherheld that: "...this question again came up for consideration before this Court in Jatinder Singh v. Ranjit Kaur. There also this Court by relying on the principle in Pramatha Nath held that there is no provisions in the Code or in any other statute which debars a complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are "exceptional cirumstances". This Court held in para 12, if the dismissal of the first complainant then there is no bar in filing a second complaint on the same facts. However, if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different."
27. In M/s Jayant Vitamins Ltd. v. Chaitanyakumar and Another this Court held that in the absence of compelling and justifiable reasons, it was not permissible for the Court to stop investigation by quashing an FIR.
28. In Zandu Pharmaceutical Works Limited and Ors v. Mohd. Sharaful Haque and Another6 this Court referred to State of Haryana and Ors. v. Bhajan Lal and Ors.7 and summarized and illustrated the category of cases in which power under Section 482 of the Criminal Procedure Code could be exercised. This court observed and held: "(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 Page 21 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable 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 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."
29. There can be no doubt that a mere breach of contract Page 22 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER is not in itself a criminal offence, and gives rise to the civil liability of damages. However, as held by this Court in Mridaya Ranjan Prasad Verma and Ors. v. State of Bihar and Anr., the distinction between mere breach of contract and cheating, which is a criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In this case, in the FIR, there were allegations of fraudulent and dishonest intention including allegations of fabrication of documents, the correctness or otherwise whereof can be determined only during trial when evidence is adduced.
30. Exercise of the inherent power of the High Court under Section 482 of the Criminal Procedure Code would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court under Section 482 of the Cr.P.C.
31. Power under Section 482 Cr.P.C. might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.
32. Where the accused seeks quashing of the FIR, invoking inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. Reference may be made to the decision of this Court, inter alia, in State of Punjab v. Subhash Kumar and Ors.9 and Janata Dal v. H.S. Chowdhary and Ors.
33. In Vesa Holdings (P) Ltd. and Anr. v. State of Kerala and Ors., this Court observed: Page 23 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
R/CR.MA/4574/2019 ORDER "12. The settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception."
13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not."
34. In Vesa Holding (P) Ltd. (supra), this Court found that there was nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat, which was a condition precedent for an offence under Section 420 Indian Penal Code. The complaint was found not to disclose any criminal offence at all.
35. It is well settled that a judgment is a precedent for the issue of law which is raised and decided. Phrases and sentences in a judgment are to be understood in the context of the facts and circumstances of the case and the same cannot be read in isolation.
36. As observed above, every breach of contract does not give rise to an offence of cheating. The language and tenor of Vesa Holdings (P) Ltd. (supra), particularly, the observation that breach of contract would give rise to an offence of cheating only in those cases where there was any deception played at the very inception, is to be understood in the context of the facts of that case and accordingly construed. The phrase "in those cases where there was any deception played at the very inception" Page 24 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
R/CR.MA/4574/2019 ORDER cannot be read out of context. This is not a case of breach of contract simplicitor but there are serious allegations of forgery of documents, use of blank letterhead, papers and cheque leaves of the appellant.
37. In this case, it cannot be said that there were no allegations which prima facie constitute ingredients of offences under Sections 420, 409 and 34 of the Indian Penal Code in complaint. There were clear allegations of fraud and cheating which prima facie constitute offences under Section 420 of the Indian Penal Code. The correctness of the allegations can be adjudged only at the trial when evidence is adduced. At this stage, it was not for the High Court to enter into factual arena and decide whether the allegations were correct or whether the same were a counterblast to any proceedings initiated by the respondents.
38. In Jatinder Singh (supra), this Court clearly held that if dismissal of the complaint was not on merit, but on default of the complainant, moving the Magistrate again with a second complaint on the same facts is maintainable. But if the dismissal of the complaint under Section 203 of the Code was on merits, the position could be different.
39. The failure to mention the first complaint in the subsequent one is also inconsequential as held, in effect, in Jatinder Singh (supra). Mentioning of reasons for withdrawal of an earlier complaint is also not a condition precedent for maintaining a second complaint. In our considered opinion, the High Court clearly erred in law in dismissing the complaint, which certainly disclosed an offence prima facie. At the cost of repetition, it is reiterated that it was not for the High Court to enter the factual arena and adjudicate the merits of the allegations."
12. Apt would be to refer to the decision of the Page 25 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER Apex Court rendered in case of State of Haryana (supra), wherein the Apex Court has made out various categories to hold that if the FIR is absolutely mala fide, vexatious and amounts to abuse of process of law, the same deserves to be quashed.
"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
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information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.Page 27 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
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(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 vengenance on the accused and with a view to spite him due to private and personal grudge."
13. The Apex Court in case of Uma Shankar Gopalika (Supra) found that the case before it is of a purely a civil dispute between the parties for it the remedy according to the Court was before the Civil Court by filing a properly constituted suit and continuing the police investigation in a matter like that would amount to abuse of process of law and therefore, the High Court needs to exercise powers under Section 482 of the Code of Criminal Procedure in such circumstances.
"7. In out view petition of complaint does not disclose any criminal offence at all much less any offence either under Section 420 or Section 120B IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of court and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 CrPC which it has erroneously refused. Page 28 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
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8. It appears that though the complaint was filed against three persons, one of whom Vijay Shanker has dies as stated above, there is another accused Gopalika Finance Corporation Limited which has neither moved the High Court nor this Court for quashing the first information report relating to it. But in view of out conclusion that the first information report does not disclose any offence whatsoever and the prosecution is liable to be quashed, we are of the view that it would be just and expedient to quash prosecution launched against the aforesaid Corporation as well.
9. Accordingly, the appeal is allowed, the impugned order rendered by the High Court is set aside and the police investigation and consequent prosecution of the appellant as well as the Corporation are hereby quashed."
14. In case of Joseph Salvaraj A (supra), the offences were under Section 406, 420 and 506 of the Indian Penal Code and from general conspectus of various sections under which the appellant had been charged and were to be prosecuted, when examined the Court held that, this was purely a civil nature of dispute and the FIR is an abuse of process of law. The civil dispute is sought to be given a colour of criminal offence to wreck vengeance against the appellant and it did not meet the strict standard of proof required to sustain criminal accusation. The Court also held that the appellant was not allowed to go through Page 29 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER the rigmarole of the criminal prosecution for long number of years when admittedly a civil suit had already been filed and the matter was sub judiced. Apt would be to reproduce relevant findings and observations of the Apex Court as under:
"20. In the instant case, we have to first examine Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 10 whether any of the ingredients under Section 406, 420 or 506 (1) of the IPC have been made out to enable the Court to take cognizance thereof against the appellant or not. Bare perusal of the FIR lodged by the complainant, would indicate that he had got in touch with the appellant so as to extend the benefit of Appellant's Channel "GOD TV" to his other brethren residing at Ahmedabad. For the said purposes, he had met the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement for a sum of Rs. 10 lacs on behalf of the Appellant's Company as the fee to be paid to Siti cable by Appellant for telecast of channel "God TV" in Ahmedabad. Further grievance of the Complainant was that despite the telecast of "GOD TV", the Appellant, as promised, failed to pay a sum of Rs. 10 lacs to the owners of Siti cables. This is what has been mentioned in nutshell in the complainant's FIR. We have grave doubt, in our mind whether on such averments and allegations, even a prima facie case of the aforesaid offences could be Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 11 made out against the present appellant.
24.Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant's FIR. Even if the charge sheet had been filed, the learned Page 30 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant's FIR, charge sheet, documents etc. or not.
25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 13 dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation.
26. In such type of cases, it is necessary to draw a distinction between civil wrong and criminal wrong as has been succinctly held by this Court in Devendra Vs. State of U.P., 2009 (7) SCC 495, relevant part thereof is reproduced hereinbelow:
"A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out."
27. In fact, all these questions have been elaborately discussed by this Court in the most oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan Lal, where seven cardinal principles have been carved out before cognizance of offences, said to have been committed, by the accused Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 14 is taken. The case in hand unfortunately does not fall in that category where cognizance of the offence could have been taken by the court, at least after having gone through the F.I.R., which discloses only a civil dispute.
28. The Appellant cannot be allowed to go through the rigmarole of a criminal prosecution for long number of Page 31 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER years, even when admittedly a civil suit has already been filed against the Appellant and Complainant Respondent No. 4, and is still subjudice. In the said suit, the Appellant is at liberty to contest the same on grounds available to him in accordance with law as per the leave granted by Trial Court. It may also be pertinent to mention here that the complainant has not been able to show that at any material point of time there was any contract, much less any privity of contract between the Appellant and Respondent No. 4 the Complainant. There was no cause of action to even lodge an FIR against the Appellant as neither the Complainant had to receive the money nor he was in any Crl. A. @ S.L.P. (Crl.) No.2409 of 2007 15 way instrumental to telecast "GOD TV" in the central areas of Ahmedabad. He appears to be totally a stranger to the same. Appellant's prosecution would only lead to his harassment and humiliation, which cannot be permitted in accordance with the principles of law.
29. Thus, looking to the matter from all angles, we are of the considered opinion that the prosecution of the Appellant for commission of the alleged offences would be clear abuse of the process of law.
30. The FIR under the circumstances deserves to be quashed at the threshold. We accordingly do so. The Appeal is, therefore, allowed. The order of learned Single Judge is set aside. The FIR dated 05.09.2006 lodged by Respondent No. 4 Complainant with Odhav Police Station, Ahmedabad stands quashed and all criminal proceedings emanating therefrom also stand quashed. The parties to bear their respective costs. "
15. It is thus quite clear from the law laid down and discussed herein above that, even if, it is a Page 32 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER second complaint unless the first complaint has been disposed of on full consideration of the matter on merit, second complaint is not barred. Thus, in the instant case, request not to entertain the second complaint on the very facts, for the first complaint having been inquired into, need not be acceded to.
16. It is apt to make a mention that in case of V.Ravi Kumar (supra) the appellant had carried out the business of cotton ginning and conversion of cotton into yarn as the proprietor of "SARVANA YARN TRADERS". He had entered into transaction with Shri Rajendran Mills Ltd., Salem and the respondent No.2accused was the Managing Director of the Mill and respondent Nos.3 and 4 respectively were chairman and son of the Managing Director whereas other respondents who were also responsible for administering the Mill. 16.1 The Mill had requested the appellant to supply cotton lint to the Mill for conversion of the same into yarn. The Memorandum of Understanding in writing was also executed, Page 33 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER pursuant to which the appellant supplied huge quantity of cotton lint to the Mill for conversion into yarn. According to the appellant, the accused had connived with each other and they did not convert the lint into yarn inspite repeated request, they sold the entire cotton lint and appropriated the sale proceeding. Complaint under Sections 420 and 409 read with Section 34 of the Indian Penal Code had been filed in the year 2004. Eventually, after much struggle the FIR was registered in the year 2005 being Crime No.54 of 2005. Although, the High Court directed the Investigating Officer to file a final report, the police did not complete the investigation and took an extension of time. The respondentsaccused filed a petition under Section 482 of the Code of Criminal Procedure for quashing of the FIR No.54 of 2005 contending that the complaint did not prima facie make out the offence for which they were charged. This was resisted both by the State and the appellant original complainant. The High Court had granted Page 34 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER the period of six months for completing investigation in FIR No.54 of 2005. On 24.11.2005 and on 30.11.2005 the High Court referred the matter to the Conciliation and Mediation Centre for resolution of the dispute. The appellant opposed the conciliation proceedings on the ground that the offences were noncompoundable whereupon the case was once again referred back to the High Court for decision on merit. The High Court allowed the application under Section 482 of the Code of Criminal Procedure on the ground that the complainant without assigning the reasons had withdrawn the first complaint and launched prosecution by filing a fresh complaint and that the complaint arose out of a commercial transaction.
16.2 In such circumstances, when the matter travelled to the High Court, the question arose as to whether the appellant since had withdrawn an earlier complaint without assigning any reasons, the transaction being commercial in Page 35 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER nature, the remedy of appellant was only for filing the civil suit.
17. The facts in the appeal before the Apex Court and in the instant case are diametrically different as can be seen from the chronology of events. In the instant case, the criminal complaint had already been filed earlier by the very complainant before the Court of learned Magistrate, Kathor by way of Criminal Case No.09 of 2002, where identical set of evidence had been presented as done in the present FIR. The complaint was filed under Sections 448, 465, 467, 468, 471, 423, 504, 506(2), 34 and 114 of the Indian Penal Code as well as under the provisions of the Land Grabbing Act. It was sent for investigation under Section 156(3) of the Code of Criminal Procedure to the Investigating Agency which submitted 'C' summary report holding that the dispute was essentially civil in nature and no offence was made out for the said transaction.
18. In the 'C' summary, learned Magistrate had Page 36 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER issued the notice to the complainant vide order dated 28.03.2003 and the complainant had appeared before the learned Magistrate through an advocate. After adjournment on various occasions, at the instance of the complainant on 05.03.2005 the request of learned advocate of the complainant was rejected and the 'C' summary report filed was accepted. Of course, there are no detailed reasons for the Court to have accepted the 'C' summary. The fact is not in dispute that the complainant had been issued the notice and she was represented by the learned advocate. Time and again, the adjournment also had been sought and eventually the complainant was also made aware of the 'C' summary having been accepted by the Court by rejecting his request. Neither any attempt made by the complainant to seek review/recall of the said order nor has she challenged the same before the higher forum in the revision. In short, no challenge has been made before this Court to the said order of accepting 'C' summary. Page 37 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
R/CR.MA/4574/2019 ORDER 19. It is to be noted that after Judicial
Magistrate was approached by the complainant by way of a private complaint, the Court had directed the investigation under Section 156 (3) of the Code of Criminal Procedure and the police has in detail investigated and found the case to be of civil nature and the same has resulted into acceptance of the 'C' summary. Without challenging that earlier report when the second complaint is sought to be made after 14 years and that too, without any murmur of earlier proceedings either before the Criminal Court or of the pendency of the Second Appeal before this Court, this has to be considered as nothing but a sheer misuse on the part of the petitioners, who had very craftily and in a surreptions manner, to overreach the process of law, has deliberately suppressed the pendency of the Second Appeal arising from the civil suit preferred by the petitioners against the complainant and others. Not only the suit has resulted in favour of the Page 38 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER petitioners, but the Court has also directed to maintain status quo as the possession indubitably is with the petitioners. Having lost before two courts, two concurrents findings in the Civil Court which are binding the Criminal Court and the criminal machinery, if the petitioners choses to lodge the second FIR, she cannot take recourse to the law laid down in case of V.Ravi Kumar (supra) to say that the second FIR is sustainable because the earlier FIR had not been concluded on merit. By all means, the earlier FIR had been investigated and the police found and concluded that to be essentially and predominantly a civil dispute.
20. It is to be noted that the power of attorney has been given to the brother by all the sisters, who are claiming to be putting the thumb impression whereas in the power of attorney, they had signed the documents. According to the learned advocate for the complainant, the complainant and others are incapable of Page 39 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER signing for being illiterate.
21. However, it has been pointed to this Court by the learned senior advocate, Mr.Anshin Desai that the complainant had signed in the official document prior to the lodgment of the first FIR. It is only with a view to grab the benefit of rising prices that the sibling inter se have disputed the power of attorney given to one of the siblings.
22. This Court notices that in the FIR impugned the police also has not bothered to verify with regard to the Civil Suit No.26 of 2011 pending before the Court at Kathor and has started investigation into the matter. It is strange that there are numbers of petitions ordinarily preferred before this Court for lodgment of an FIR as mandated in case of Lalita Kumari v. State of Uttar and others, reported in (2014) 2 SCC 1 by the Constitution Bench. More particularly, when these parties have any civil disputes pending between them, the police department ordinarily adopts the stand of Page 40 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER not lodging the FIR. However, in the instant case, although there is no revelation of earlier FIR having culminated into the 'C' summary, but noticing the civil dispute between the parties the police could have verified its details and it could have realised the pendency of Second Appeal before this Court only on substantial question of law. It is unfair to the party who has on civil side succeeded in protracted litigation against the party which has lost in a suit for title and ownership and to face criminal prosecution once again on the identical question. It is to be noticed that the allegations made are under Sections 462, 465, 467, 468 and 471 of the Indian Penal Code. Apt would be to refer to these provisions at this stage.
"462. Punishment for same offence when committed by person entrusted with custody. Whoever, being entrusted with any closed receptacle which contains or which he believes to contain property without having authority to open the same, dishonestly, or with intent to commit mischief, breaks open or unfastens that receptacle, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Page 41 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
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465.Punishment for forgery: Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
467.Forgery of valuable security, will, etc. Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with a [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating: Whoever commits forgery, intending that the document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471.Using as genuine a forged [document or electronic record] Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]." Page 42 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019
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23. These provisions of Section 463 and 465 of the Indian Penal Code speak of forgery of any document or valuable security. There is nothing to indicate from the FIR of any offence under Section 463 or 465. Provision of Section 467 also speaks of forgery of valuable security, will, etc. for the purpose of cheating. With the Court having believed the case of the petitioners resulting into the decree in their favour on the strength of the power of attorney of brother of the complainant, neither the ingredients of Sections 467 or 468 of the Indian Penal Code would come into play. Section 471 of the Indian Penal Code alleges of using as genuine a forged document or electronic record. There is nothing emerging on record that the petitioners used power of attorney as a genuine document despite knowing the same to be ingenuine.
24. It would be profitable to refer to the observations made by the Hon'ble Apex Court in the case of Mohammed Ibrahim and Ors (supra), Page 43 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER wherein, the Apex Court observed as under:
"14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of `false documents'. It Page 44 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not Page 45 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted. Section 420 IPC."
25. It is clear that no offence is also made out so far as Section 471 of the Indian Penal Code is concerned.
26. Apt would be to refer to the decision of this Court rendered in case of Manojbhai Parshottambhai Movaliya (supra), where the complaint was with regard to the criminal breach of trust, cheating and forgery for the transactions which were conducted between 1982 to 2009 for which the complaint was lodged in the year 2014. The Court found bona fide purchasers of land arraigned as accused. It was a civil nature of the dispute and the belated complaint with conspectus of entire case which led Court to exercise the powers of quashment with the following observations, more particularly, focusing on the delay aspect:
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"24. The Apex Court in the case of Manoj Kumar
Sharma and others v. State of Chhattisgarh and another,
reported in AIR 2016 SC 3930, while dealing with the issue of delay in lodging the first information report has held that the said act raises doubt about truthfulness of the allegations. There was delay of five years in lodging the first information report in the said case. It would be beneficial to regurgitate the relevant observations of the said decision, which read as under :
"18. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In our opinion, such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by the Respondent No.2 herein against the appellants, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, Respondent No.2 herein has tried to rope the appellants in criminal proceedings. We are of the confirmed opinion that continuation of the criminal proceedings against the appellants pursuant to this FIR is an abuse of the process of law. Therefore, in the interest of justice, the FIR deserves to be quashed. In this context, it is apt to quote the following decision of this Court in Jai Prakash Singh vs. State of Bihar and Anr. (2012) 4 SCC 379 wherein it was held as under:
"12.The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the wyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the Page 47 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the information's version. A promptly lodged FIR reflects the firsthand account of what has actually happened, and who was responsible for the offence in question."
27. This Court from the overall examination of the material produced on the record finds complete absence of any plausible and reasonable explaination for the delay of 37 years from the date of occurrence of the alleged offence and 14 years from the conclusion of the first FIR. This absence of explanation shall need to be concluded as fatal as not only the allegations alleged are afterthought but a calculated version to rope in the petitioners and to rob them off the fruits of decree culminated from the civil litigation. Such malicious litigation if is allowed to be continued, only on the ground that the complainant was not signing the document and instead had put the thumb impression when, in fact, the Court has found the evidence of signing of the documents prior to the Page 48 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019 R/CR.MA/4574/2019 ORDER first complaint, this Court needs to intervene and indulge in quashing the FIR as the subsequent second complaint is nothing but to wreck vengeance by using the Court proceeding as a weapon to bring the petitioners to the knee and to force the compromise in the civil litigation which has been lost so far by the petitioners.
28. Resultantly, this petition is allowed and the impugned FIR being IC.R.No.43 of 2019 registered with Kamrej Police Station, District Surat, is QUASHED with all consequential proceedings with the cost of Rs.50,000/ (Rupees Fifty Thousand Only) to be paid by the complainant to the petitioners.
Rule is made absolute, accordingly. Direct service is permitted.
(MS SONIA GOKANI, J) M.M.MIRZA Page 49 of 49 Downloaded on : Wed Jul 03 01:08:57 IST 2019