Karnataka High Court
Micheal Floyd Eshwer vs State By on 17 February, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION NO.4761 OF 2018
BETWEEN:
MICHEAL FLOYD ESHWER
AGED 53 YEARS
S/O LATE B.S.ESHWER
R/AT BISALMANTHI
P.B.NO.44,
HYDER ALI ROAD (ABBA ROAD)
NAZARBAD
MYSURU - 570 017.
... PETITIONER
(BY SRI C.H.JADHAV, SR. ADVOCATE A/W
SRI JAYARAMA BHATT S., ADVOCATE
(VIDEO CONFERENCING))
AND:
1. STATE BY
NAZARABAD POLICE STATION,
MYSURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001
(SINCE ORIGINAL COMPLAINANT
E.J VENNIGAN IS DEAD)
2. MISS. TILLY GIFFORD @ MATTILDA
C/O MARINA MEYN
AGED 35 YEARS
2
R/AT NO.63/A, AJ BLOCK
N.R. MOHALLA
MYSURU - 570 007.
(SINCE PETITIONER IN SLP 3335/2015
IN WHICH MATTER IS REMANDED)
N.R. MOHALLA POLICE STATION,
MYSURU.
... RESPONDENTS
(BY SRI V.M.SHEELVANT, SPP. I, A/W
SMT.NAMITHA MAHESH B.G., AGA FOR R1
(PHYSICAL HEARING)
SRI B.RAJA SUBRAMANYA BHAT, ADVOCATE FOR R2
(PHYSICAL HEARING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO 1.QUASH THE ORDER
DATED 05.04.2018 PASSED BY THE COURT OF THE III
ADDITIONAL CIVIL JUDGE AND JMFC, MYSORE IN
C.C.NO.85/2018 PRODUCED AT ANNEXURE-A BY
ALLOWING THIS CRL.P. AND ETC.,
THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 23.12.2021, COMING
ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question the proceedings in Criminal Case No.85 of 2018 pending before the III Additional Civil Judge and JMFC, Mysore and has also sought for quashing of 3 entire proceedings right from registration of FIR in Crime No.46 of 2013.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
The petitioner claims to be a licensed professional Class-I horse trainer since 1991. The avocation of the petitioner is to train horses and run them at races conducted at various places like Mumbai, Chennai, Ooty and Kolkata. It is contended that the petitioner got acquainted with the complainant - one late Edwin Joubert Van Ingen - a Taxidermist by profession and a member of the Mysore Race Club where he used to meet the complainant quite often. The complainant was a founder member of the said race club. Trophies were distributed in the name of the complainant. It is that amount of popularity the complainant had in the race circle at Mysore.4
3. On one occasion, during the month of November/December 2004 the complainant appears to have called the petitioner and informed him that he possesses two immovable properties at Mysuru - one, a factory and the other, a residential house and also a coffee estate in Waynad District, Kerala State, and with his old age, he is not in a position to maintain both the properties and desired to dispose them off. The petitioner was informed that he was willing to sell all the three properties, if he would get an appropriate price for the said properties. In furtherance of the desire to sell all the properties, the complainant handed over all the documents of his factory and requested the petitioner to find a purchaser, who is willing to pay him an amount of Rs.3/- crores by way of bank transaction and any other higher value in cash.
4. The petitioner claims to have contacted a builder and developer by name Sri K.V.Prasad who 5 showed keen interest in the property after inspecting the same and met the complainant along with the petitioner and agreed to purchase the factory for a consideration of Rs.3/- crores. It is further contended that the intended purchaser was directed to deposit the amount in an escrow account in which the entire transaction of the complainant was to be routed through. A sale deed was also registered on 10.10.2005 in favour of Sri K.V.Prasad. It is the claim of the petitioner that he was instrumental in getting the sale done by procuring all the documents and all other things for the same.
5. After execution of the sale deed, the complainant asked the petitioner to find a similar purchaser to sell the house property which according to the petitioner was for a consideration of Rs.75/- lakhs.
The petitioner found the offer so attractive and informed the complainant that he possesses some landed 6 properties below Nandi Hills and he would sell them and arrange for payment of Rs.75/- lakhs and purchase the property for himself. The petitioner claims to have sold the property at Nandi Hills and paid the entire amount of Rs.75/- lakhs in one stroke and purchased the said house. The purchase was again through a sale deed dated 14.11.2005.
6. It is further contended that since the complainant continued to stay at the out-house of the said property, the petitioner displayed all the animal trophies that the complainant had in his possession being a taxidermist in other portion of the property apart from residing in one portion of the said property.
The reminder of the property was the Waynad Coffee Estate which the complainant was intending to sell.
7. During the month of January of 2005, it transpires that the complainant had informed the 7 petitioner that he had executed an agreement to sell Waynad Coffee Estate in favour one Dr. Mohammed Bashir and the said agreement would come to an end on 31.01.2005 and if the purchaser would not come forward to get the property registered he would rescind the contract. The petitioner claims to have been asked by the complainant to develop the coffee estate as it was in a dilapidated condition for 10 years. The agreement entered into with Dr. Mohammed Bashir was rescinded and the complainant executed a gift deed gifting the entire coffee estate in favour of the petitioner. The gift deed was registered on 1.02.2006.
8. It is further contended that the complainant with an intention that his trophies should be protected after his demise, got one of the minor children of the petitioner in adoption in terms of an adoption deed dated 29.04.2006. Further a Will was executed for the remaining property viz., the bank account in favour of 8 the petitioner by way of registered Will dated 29.05.2005. Thus, all the properties belonging to the complainant were either sold, bequeathed or gifted to the petitioner.
9. After execution of the gift deed in favour of the petitioner, a complaint was registered against the petitioner for violation of Foreign Exchange Regulation Act, 1973 with regard to transactions between the petitioner and the complainant. During all these proceedings, it appears that the complainant died on 12.03.2013. After the death of the complainant, it is the claim of the petitioner that he continued to be in possession of all the properties mentioned (supra). A complaint came to be registered against the petitioner before the jurisdictional police in Crime No.46/2013 on 11.03.2013 alleging that the petitioner had defrauded a foreign national, the complainant and knocked off all his properties. After getting enlarged on bail, the 9 petitioner filed Criminal Petition No.3615 of 2013 before this Court calling in question the entire proceedings in Crime No.46 of 2013 which was registered for offences punishable under Sections 403, 409, 420 and 464 of the Indian Penal Code. The criminal petition was allowed and the proceedings in Crime No.46 of 2013 were quashed.
10. The complainant's legal representative challenged the said order of quashing the proceedings against the petitioner before the Apex Court. The Apex Court by its order dated 01.08.2017 set aside the order passed by this Court and directed restoration of proceedings. After remand, the proceedings in Crime No.46/2013 continued and the police after investigation filed a charge before the competent Court. The competent Court took cognizance of the offences punishable under Section 120B, 201, 342, 384, 403, 406, 409, 420, 465, 468 and 506 of the IPC read with 10 Sections 39 and 51 of the Wild Life Protection Act, 1972.
It is at that juncture the petitioner has knocked the doors of this Court for the second time in the present petition.
11. Heard the learned senior counsel Sri C.H. Jadhav appearing for the petitioner, learned Public Prosecutor Sri V.M. Sheelvant representing the State and the learned counsel Sri B.Raja Subramanya Bhat appearing for the 2nd respondent/complainant.
12. The learned senior counsel would submit that the matter is purely civil in nature as there are registered documents in favour of the petitioner - one a registered sale deed executed by the complainant who was then alive, a gift deed gifting the coffee estate and an adoption deed taking the son of the petitioner for adoption for protection of his property. All these registered documents are still in existence in favour of 11 the petitioner and none of them have been annulled by a competent Court of law. These matters being purely civil in nature are given a colour of crime by certain elements who want to disturb peaceful possession of the properties by the petitioner.
13. He would submit that there are serious discrepancies in registration of the crime, the FIR and the statement taken during the investigation. The learned senior counsel would take this Court through the earlier order passed wherein the police diary was summoned and kept in safe custody in the registry of this Court, which would only show that all was not well with the police against the petitioner. He would submit that earlier this Court had considered every aspect of the matter and quashed the proceedings holding the plea that the petitioner wanted to knock of the property was a figment of imagination of the complainant as every document on which the prosecution placed 12 reliance to contend that it was a fraud were all registered documents. He would place reliance upon several judgments to contend that since the issue is purely civil in nature, the Court should interfere with the proceedings and pass appropriate orders. He would place reliance upon certain judgments wherein the Apex Court has delineated what should be the contents of general diary and should not be made of fabricated false entries in the case of SADHU SINGH v. STATE OF UTTAR PRADESH - (1978) 4 SCC 428, para 7 and SHRI BHAGWANT SINGH v. COMMISSIONER OF POLICE, DELHI - (1983) 3 SCC 344, para 17. He would submit that the entire proceedings are vitiated on account of fabrication in the general diary.
14. On the other hand, the learned State Public Prosecutor Sri.V.M.Sheelvant, vehemently refutes the contentions advanced by the learned senior counsel and submits that there is no fabrication found in the general 13 diary; it is maintained in the manner that it should be and there are so many transactions between the complainant and the petitioner which were all fraudulent. It is the case of the prosecution that the petitioner taking advantage of the old age of the complainant put the complainant in unlawful house arrest in the outhouse of the house that the complainant owned and on the threat of life got all the documents of aforementioned properties executed. The main witness to the case was one Smt. Tilly Gifford, a relative of the complainant who in her statement recorded in February 2013 narrates that both the complainant and herself visited Deputy Commissioner of Police, Mysore and later registered a complaint before the Nazarbad Police Station in Crime No.46/2013 seeking to take action against the petitioner who had created all the documents in respect of the property -
coffee estate and several other properties which bare mention in the complaint.
1415. The learned State Public Prosecutor would further emphasise on the possession of the petitioner of each of the properties. By threatening the complainant, gift deed was obtained by the petitioner in respect of coffee estate which runs into 253 acres situated in Mananthavadi. He would further contend that he got his minor son Karl Lindley Eshwar adopted by the complainant and the adoption deed is signed by accused Nos. 2 and 3 as witnesses to get the animal trophies worth crores. The Bank accounts of the complainant were all taken in the name of the petitioner by obtaining a Will. The Bank accounts were in India, UK. Company shares, animal trophies, animal leather, gun and gun licence and all properties belonged to the complainant. It is his contention that all these documents were all executed under the life threat to an old man or are fabricated and would further submit that since these are disputed questions of fact, this Court should not interfere in the proceedings at this juncture.
1516. I have given my anxious consideration to the submissions made by the respective learned counsel for the parties and perused the material on record.
17. The afore-narrated facts not being in dispute are not reiterated. The only issue that needs consideration is, whether the case at hand merits interference at this stage of proceedings. The entire issue sprang from registration of a complaint against the petitioner by the complainant Edwin Joubert Van Ingen on 12-03-2013. The narration in the complaint is as follows:
"The above named Complainant begs to submit as follows:-
1. The Complainant is a Bachelor aged 101 years British National living in India from last 100 years. Further he is also owning a residential house and Coffee Estate at Mananthawadi and Wynad District, Kerala State.
2. The Complainant brings to the kind notice the following few facts and also request the Authority to take necessary and 16 proper action against Mr.Michael Floyd Eshwer, S/o B.S.Eshwer, residing at 1/1, Banaswadi Road, Cooke Town, Bangalore 560 005; who has duped the Complainant, by cheating and creating documents fraudulently, thereby earned unlawful gain for himself all these years, and now put the Complainant out of his house at the fag end of his life. Mr.M.F.Eshwer came to the Complainant as a Broker/middleman;
when he intend to sell their factory land situated by the side of the house of the Complainant 'Bissal Munti' and thus gained the confidence in that transaction. Mr.M.F.Eshwer represents that he is a Horse Trainer and owns horses at Dubai, Pune, Mumbai. Further he represented that he knows all big shots and he will obtain necessary permission in accordance with law for sale of the Coffee Estate of the Complainant situated at Wyanad. The Complainant believed his version and he gave ownership documents in respect of his residential house so also the Coffee Estate. He took the signatures of the Complainant now and then in different papers including signatures to the cheques. The Complainant came to know that said M.F.Eshwer represents to the public and Authority that he is the adopted son of the Complainant. Now after taking all benefits whichever is possible and after putting the Complainant in bankruptcy; he has now thrown out the Complainant from his house and put him in a small shed without 17 facilitating any necessary things for his day- to-day life.
The above are the few facts which will clearly prove that Mr.M.F.Eshwer has cheated the Complainant and misappropriated his funds, valuable things so also dishonestly created documents in his favour about the ownership of the residential house as well as the Coffee Estates of the Complainant:-
1. The Urban land bearing S.No.2637; Old S.No.9, Khatha No.33 in Erangare Village of Kasaba Hobli, Mysore within Mysore City Municipal Corporation where the residential house with other buildings at Bissal Munti, Nazarbad Mohalla, Mysore of the Complainant; worth more than Rs.10,00,00,000/- in the present market value, now changed to his name showing the value of the property as Rs.2,37,94,500/- for the Stamp Duty purpose and sale consideration at Rs.75,00,000/- said to be paid to the Complainant through Demand Draft. In fact, the said amount was shown as credited to the account of the Complainant;
and later on withdrew through cheques in favour from time to time. In fact, the Complainant never received any sale consideration from Mr.M.F.Eshwer though it is shown has paid to the Complainant. The Complainant has not handed over the possession of the house, but recently in the guise of renovation of the main house ousted the Complainant to the out-house, depriving all the facilities.
182. The said M.F.Eshwer the accused, has also created documents in his favour in respect of the Wyanad Coffee Estate of the Complainant; and the accused made the complainant to believe that he will manage the Coffee Estate of the Complainant and help the Complainant in looking after the same in the old age of the Complainant; and when the Complainant thought of sale of the said Coffee Estate. The accused told that he will search for the buyer and also get necessary permission from Reserve Bank of India for sale of the said Coffee Estate. Now the Complainant came to know that he has created 'Gift Deed' in his favour and thereby knocked off all that estate owned by the Complainant without giving a single penny to the Complainant; thereby dishonestly and by breach of trust, transferred the ownership of the entire Coffee Estate which worth more than Rs.25,00,00,000/- at the present market value. It is also reported that the Accused has cut and sold all valuable trees thereby earned a huge amount.
3. Mr.M.F.Eshwer had took the Complainant to various offices including Registration office at different point of time, with false representation. It is also brought to the knowledge of the Complainant recently that he has made the Complainant to execute a will bequeathing all that estate of the Complainant, his bank deposits in India as well as in U.K, company shares, animal trophies, skins and Gun Licenses in his favour after the death of the Complainant. The Complainant has now cancelled the said 19 will and made his own arrangements for the same in accordance with his wishes. The Complainant further came to know that said M.F.Eshwer has taken signatures of the Complainant for creating nomination in his name to Bank Account of the Complainant.
4. Mr.M.F.Eshwer has also took cash amount lakhs of rupees from the Complainant at different period with assurance of investing the same in the name of Complainant on various shares. But, he has not invested any money in his name rather used for his own benefits. Mr.M.F.Eshwer also took the staff of the Complainant into confidence with false assurance and made them to go against the Complainant or act against his interest. The Said M.F.Eshwer misrepresents that he has the adopted son of the Complainant and looking after him by providing medical and workers payment etc., which is false and mis-representation to the public.
5. Because of the age of the Complainant, the Complainant is not in a position to recollect all other misdeeds done by the said M.F.Eshwer who has cheated misappropriated, fraudulently obtained the signatures of the Complainant and also acted against the interest of the Complainant all these years. The Accused has not permitted the Complainant to go out of the house thereby confined the Complainant wrongfully and after finishing all the 20 motivated work and after getting all benefits from the Complainant, transferred the ownership of movable and immovable, Coffee Estate; thereby dishonestly earned a huge amount. The said M.F.Eshwer has cheated the Complainant and thrown him out of his own house.
6. The Complainant will furnish all other particulars about the misdeeds, criminal acts of Mr.M.F.Eshwer in the course of enquiry.
Therefore, I Pray your good self to take necessary legal action against Mr.M.F.Eshwer by registering F.I.R and also put the Complainant back into his possession of his Coffee Estate and house property so also of the movable valuable things mentioned here before as well as other things which M.F.Eshwer has retained for himself. The Complainant also requests to give the Complainant and his staff necessary protection against the threat/criminal acts which Mr.M.F.Eshwer may take against them to hide all his misdeeds.
Prays For Orders accordingly.
Mysore Date:06/02/2013"
(Emphasis added) 21 The doubt with regard to date of registration of the complaint is writ large as is contended by the learned senior counsel for the petitioner. The complaint is dated 6-02-2013 and it is received at the Police Station on 02-03-2013; it does bear another signature as 12-03- 2013 and also bears the signature of receipt of complaint on 11-03-2013 at 18:45 hours. It is this complaint that becomes an FIR in Crime No.46/2013.
18. FIR itself is not registered separately is what is contended, as endorsement of crime number is found in the complaint itself. On this and other grounds, inter alia, the petitioner had filed Criminal Petition No.3615/2013 before this Court. This very ground taken that the complaint is said to have been registered on 11-03-2013 at 6.45 p.m. and finding various discrepancies in the registration of the complaint itself, this Court allowed the criminal petition. This was called in question before the Apex Court in S.L.P.(Criminal) 22 No.3555 of 2015. The Apex Court on considering the entire matter observed as follows:
"9. We have extracted the aforesaid findings (which clearly appear to be against the respondent-accused) only to highlight the fact that the statements on which reliance has been placed have been appreciated by the Inquiry Officer and conclusions have been drawn and reached, which fact would be suggestive of an imminent requirement of appreciation of materials to be unraveled by a proper investigation so as to arrive at the necessary findings of the core issue i.e., the legal existence of a valid FIR. However, taking into account the fact that the inquiry was conducted pursuant to the order of the High Court to unravel the truth surrounding the lodging of the FIR and was not a step in the investigative process which, in any case, has been interdicted by the High Court by the impugned order, we do not consider it prudent to come to one conclusion or the other with regard to the said findings. However the findings of the inquiry would clearly indicate that a large volume of material facts surrounding the lodging of the FIR and its authenticity needs to be investigated and the truth unraveled. But this is what has been interdicted by the High Court. In the above situation, we find ourselves unable to agree with the view taken by the High Court. On the contrary, we are of the opinion that the FIR in question should 23 be fully investigated in accordance with law and thereafter further legal consequences as may be warranted should be allowed to take effect. We order accordingly and direct the completion of the investigation within sixty days from today, whereafter steps in accordance with law will follow.
10. We consequently set aside the order of the High Court dated 19-06-2014 released on 22-05-2015 and dispose of the appeal in the above terms.
(Emphasis supplied) The Apex Court clearly observed that the statements on which reliance was placed by the accused have been appreciated by the Investigating Officer and conclusions have been drawn and reached, which fact is suggestive of an imminent requirement of appreciation of materials to arrive at the finding on the core issue of legal existence of a valid FIR and directed completion of investigation within 60 days from the date of dismissal of the SLP - 01.08.2017. Observing thus, the order passed by this Court was set aside. After the said investigation, the final report/charge sheet, is filed by 24 the police before the competent Court and the competent Court has taken cognizance of the afore-
quoted offence against the petitioner. The result of investigation is found in Column No.17 which contains various allegations against the petitioner. The findings of investigation as found in Column No.17 read as follows:
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(Emphasis added)
19. In the light of the facts obtaining in the case at hand, the complaint, the disputed question with regard to the complaint or the FIR being registered and the charge sheet filed after investigation which prima facie point out certain allegations against the petitioner are seriously triable issues as they are surrounded with seriously disputed questions of fact. In the circumstances, it is apposite to refer to the judgment of 30 the Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR PRADESH1 which reads as follows:
"11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction 1 (2021) 9 SCC 35 31 only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.
13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court.
However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.
3214. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied) The Apex Court in the above decision has clearly held that the High Court should not interfere in such cases which bear serious triable issues in exercise of its jurisdiction under Section 482 of the Cr.P.C.
3320. It is also trite law that merely because the proceedings have a colour of being civil in nature, criminal proceedings cannot be quashed. The Apex Court in the case of PRITI SARAF v. STATE OF NCT OF DELHI2 has held as follows:
"31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.
32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because 2 (2021) SCC Online SC 206 34 there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.
33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of 35 commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical Industry v. Rajesh Agarwal (supra):--
"9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]"
34. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd respondent which was on record to reach at the conclusion that 36 any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.
35. The submission made by Mr. P. Chidambaram, learned senior counsel for 2nd respondent showing bonafides and taking us through the documentary evidence annexed to the counter affidavit on record to show that it was a simple case of termination because of breach of terms of the contract giving rise to a purely civil dispute or initiation of the arbitral proceedings would not attract the provisions under Sections 406, 420, 34 IPC may not hold good at this stage for the reason what is being suggested by the learned counsel for the 2 respondent can be his defence during nd the course of trial but was not open to be examined by the High Court to take a judicial notice and for quashing of the criminal proceedings in exercise of its inherent powers under Section 482 CrPC.
(Emphasis supplied) It is also germane to notice two other judgments of the Apex Court in the case of STATE OF MADHYA PRADESH v. YOGENDRA SINGH JADON AND ANOTHER3 wherein it is held as follows:
3(2020)12 SCC 588 37 "5. We find that the High Court has examined the entire issue as to whether the offence under Sections 420 and 120-
B IPC is made out or not at pre-trial stage. The respondents are beneficiary of the grant of cash credit limit when their father was the President of the Bank. The power under Section 482 of the Code of Criminal Procedure, 1973 cannot be exercised where the allegations are required to be proved in court of law. The manner in which loan was advanced without any proper documents and the fact that the respondents are beneficiary of benevolence of their father prima facie disclose an offence under Sections 420 and 120-B IPC. It may be stated that other officials of the Bank have been charge-sheeted for an offence under Sections 13(1)(d) and 13(2) of the Act. The charge under Section 420 IPC is not an isolated offence but it has to be read along with the offences under the Act to which the respondents may be liable with the aid of Section 120-B IPC.
6. Consequently, we find that the order [Yogendra Singh Jadon v. State of M.P., CRR No. 260 of 2014, order dated 2-5-2016 (MP)] of the High Court quashing the charges against the respondents is not sustainable in law and the same is set aside. The appeal is allowed. It shall be open to the respondents to take such other action as may be available to them in accordance with law."
(Emphasis supplied) 38 and in the case of RAJEEV KOURAV v. BAISAHAB AND OTHERS4 wherein the Apex Court holds as follows:
"5. A final report was filed on 19-7-2014 on completion of investigation. A petition under Section 482 CrPC was filed for quashing the criminal proceedings. It was contended on behalf of Respondents 1 to 3 before the High Court that the ingredients of Section 306 IPC have not been made out and the proceedings are liable to be quashed. According to Respondents 1 to 3, the FIR and the charge-sheet would only disclose that the entire family of the appellant was being harassed. The respondents cannot be held guilty of offence under Section 306 as there is nothing on record to show that they have incited the deceased to take the extreme step of committing suicide.
6. The High Court summoned the record of investigation and perused the statements recorded by the appellant and his family members under Section 161 CrPC. The High Court held that statements recorded under Section 161 CrPC would show that Respondent 1 is a quarrelsome lady who has threatened the appellant's family of false implication in a criminal case. The High Court observed that none of the persons whose statements under Section 161 CrPC were recorded have mentioned about the complaint of the deceased and that she was thinking of 4 (2020) 3 SCC 317 39 committing suicide due to the harassment of Respondents 1 to 3. The High Court recorded a finding that Ramsharan Kourav, the uncle of the deceased, has stated in his statement under Section 161 that the deceased informed him that she is unable to bear the torture of Respondents 1 to 3 and was thinking of putting an end to her life.
7. The High Court observed that the allegations made against Respondents 1 to 3 at the most constitute an offence under Section 506 IPC for criminal intimidation.
Read as a whole, the allegations made against Respondents 1 to 3 did not make out an offence under Sections 306/34 IPC. The High Court further held that ingredients of Section 107 IPC are also not satisfied. In that view, the petition filed by Respondents 1 to 3 for quashing the criminal proceeding was allowed.
8. It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge-sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is 40 trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding."
(Emphasis supplied)
21. Insofar as judgments relied on by the learned senior counsel for the petitioner in the cases of BHAGWANT SINGH and SADHU SINGH (supra) to contend that entries in the general diary should be made with all promptness and if there is fabrication it would lead to a conclusion that trial was not in accordance with law, were cases where the Apex Court was examining orders of conviction that were passed against the petitioners therein and not in cases where the jurisdiction was exercised under Section 482 of the Cr.P.C. to quash the proceedings on the ground that entries in the general diary did not inspire confidence in 41 the Court. That stage is yet to come about in the case at hand and it is a matter of trial and all the defenses that the petitioner wants to put up in these proceedings would always be available to the petitioner to put up in the trial and come out clean.
22. In the light of the afore-quoted judgments of the Apex Court, I do not find any warrant to interfere with the present proceedings against the petitioner. The Criminal Petition lacks merit and is accordingly, dismissed.
In view of dismissal of the petition, I.A.No.1/2018 and I.A.No.1/2020 do not survive for consideration.
Accordingly, stand disposed.
Sd/-
JUDGE bkp CT:MJ